On October 22nd, the Supreme Court of Canada unanimously rejected arguments that unique features of Quebec law justify the recognition of a class privilege to protect against the identification of journalists’ confidential sources. Rather, it held that journalists who claim confidential source privilege in a Quebec civil proceeding must meet the requirements of the Wigmore case-by-case test.
The Court summarized the proper approach as follows:
In summary, 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 that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) 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. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.
The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means. As discussed earlier, this list is not comprehensive. I will now consider whether a claim of privilege could be established in this case.
The Court also made a notable finding in support of journalists’ right to receive and publish information obtained from whistleblowers.
The Respondent argued in support of a publication ban issued after it complained about leaks from confidential settlement negotiations. The Court stressed the strong public interest maintaining the confidentiality of settlement negotiations, but also held that confidentiality obligations held by the parties to settlement discussions do not bind others, including journalists:
Moreover, there are sound policy reasons for not automatically subjecting journalists to the legal constraints and obligations imposed on their sources. The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not providing the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources of information.
This reasoning led the Court to reject a rule that would “automatically prevent” journalists from publishing information obtained from a source who is in breach of his or her confidentiality obligations. Rather, the Court held that the Dagenais/Mentuck test for limiting freedom of expression and freedom of the press in relation to legal proceedings applies.