Case Report – SCC says confidentiality promises made in newsgathering only subject to case-by-case privilege

Earlier this morning, the Supreme Court of Canada affirmed the validity of a search warrant and assistance order that was served on the National Post in 2002 and that required it to provide the RCMP with a document and envelope received from a confidential informant. Though the panel wrote three separate judgements, all nine judges held that privilege claims made by newsgatherers to protect information received in confidence should be justified on a case-by-case basis.

Background

In 2001, Andrew McIntosh of the Post received a document that appeared to be a Business Development Bank of Canada loan authorization for a $600,000 loan to the Auberge Grand-Mere. The document listed a $23,000 debt to “JAC Consultants,” a holding company of former Prime Minister Jean Chretien. The auberge was in Mr. Chretien’s home riding, and he had previously admitted to contacting the BDB’s president to urge him to approve the loan.

McIntosh circulated copies of the document to the BDBC, to the Prime Minister’s Office and to Mr. Chretien personally the course of his investigation. Based on a comparison between its file copy of the document and what McIntosh provided, the BDBC complained to the RCMP that the document was a forgery. As part of its investigation, the RCMP sought the document and envelope. Although the allegedly forged communication had been widely distributed, it believed that document and envelope might contain fingerprints and DNA that would help it identity the sender. On an ex parte basis, the RCMP obtained a search warrant and an assistance order that became the matter of the appeal.

The Post resisted because McIntosh had promised anonymity to his informant (who said he simply was passing the documents on) and (so it appears) because he questioned the whether the disclosure would actually help the RCMP’s pursuit of the wrongdoer.

The Post relied on the common law of privilege, section 2(b) of the Charter, and at the Supreme Court of Canada, section 8 of the Charter. The Canadian Civil Liberties Association and the British Columbia Civil Liberties Association, among others, intervened in support of the Post at the Supreme Court of Canada.

Majority judgement – Serious crimes need to be investigated

Binnie J. wrote for the seven judge majority that dismissed the Post’s appeal from the Ontario Court of Appeal.

Though the majority recognized a public interest in news gathering through confidential sources, it rejected arguments made by the CCLA and the BCCLA for special protected status in the form of Charter-based immunity and a common law class privilege. It held that such status would be too much a blow to the administration of justice and, notably, personal privacy. It was particularly concerned that the scope of the requested privilege would be hard to define in a manner that reflected the true public interest at stake given both the variety of means used to newsgather and the range of persons who now engage in newsgathering:

The position of the CCLA and the BCCLA is built on the premise that protection of confidential sources should be treated as if it were an enumerated Charter right or freedom. But this is not so. What is protected by s. 2(b) is freedom of expression. News gathering, while not specifically mentioned in the text of s. 2(b) is implicit in news publication, but there are many techniques of news gathering and it carries the argument too far, in my view, to suggest that each of those news gathering techniques (including reliance on secret sources) should itself be regarded as entrenched in the Constitution. Chequebook journalism is also a routine method of gathering the news, but few would suggest that this too should be constitutionalized. Journalists are quick to use long-range microphones, telephoto lenses or electronic means to hear and see what is intended to be kept private (as in the case of then Finance Minister Marc Lalonde whose budget had to be amended because a cameraman captured parts of what were intended to be secret budget documents on Mr. Lalonde’s desk). Such techniques may be important for journalists (who, unlike prosecutors, have to get along without the power of subpoena), but this is not to say that just because they are important that news gathering techniques as such are entrenched in the Constitution,

…

There are cogent objections to the creation of such a “constitutional” immunity. As recently pointed out in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the protection attaching to freedom of expression is not limited to the “traditional 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 whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper. 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.

…

Journalistic-confidential source privilege has not previously been recognized as a class privilege by our Court (Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572), and has been rejected by courts in other common law jurisdictions with whom we have strong affinities. The reasons are easily stated. First is the immense variety and degrees of professionalism (or the lack of it) of persons who now “gather” and “publish” news said to be based on secret sources. In contrast to the legal profession there is no formal accreditation process to “licence” the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards. Nor, given the scope of activity contemplated as journalism in Grant v. Torstar, could such an organization be readily envisaged.

The CCLA and the BCCLA position may have been undermined by the Post itself, which accepted that a confidential source could be protected by a case-by-case privilege analysis that is informed by the Charter guarantee of freedom of expression and the role of the media. The majority accepted this position, and did so while recognizing that, “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.”

The majority also held that the onus to satisfy all four criteria for a case-by-case privilege rests with the media. It articulated various factors relevant to the balancing of interests called for by the fourth criterion and, on the facts, held that the balance weighed in favour of production. The majority gave particular weight to the fact that the search was for physical evidence of a serious alleged crime.

In addition to the privilege finding, the majority also held that the search warrant and assistance order were not unreasonable within the meaning of section 8 of the Charter for reasons I will not describe.

Le Bel J. and Abella J. differ by degree

Le Bel J. concurred with the majority except for one aspect the majority’s section 8 finding; Le Bel J. held that the media ought to have been given notice of the application for a search warrant but that the lack of notice did not render the search unreasonable.

Abella J. dissented. She applied the balancing test to reach a different outcome than the majority. Her approach did not differ from the majority’s in principle, but does suggest a different degree of willingness to allow the media’s investigative process to preempt a law enforcement investigation. The majority said that a denial of criminal involvement that is accepted by the media “is not a sufficient ground to put an end to a serious criminal investigation.” In contrast, Abella J. said, “Where, as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgement and pause, it seems to me, before trespassing on the confidentiality which is the source of the relationship.” Abella J. also held that the the media ought to have been given notice of the application for a search warrant as required by section 8 of the Charter.

Conclusion

This case will no doubt be the subject of significant comment. My very early and basic thought is that the media claims do seem somewhat undermined by the rise of citizen journalism, as evident most strongly in the lengthy quotes I’ve excerpted above. Last December in Grant v. Torstar the Supreme Court of Canada recognized the impact of blogging, and now Twitter, all the while making claims to special rights based on bare status as a “journalist”  harder to make.

R. v. National Post, 2010 SCC 16.