Judge distinguishes between true whistleblowers and partisan pretenders in ordering disclosure of confidential source

We’ve published here before about former Minister of Parliament Blair Wilson’s defamation lawsuit, part of which rests on an allegation that former British Columbia politician Judi Tyabji distributed an anonymous and defamatory letter.

On December 31st, Mr. Justice Williamson of the British Columbia Supreme Court ordered Elaine O’Connor, a reporter to whom the letter was provided under a condition of confidence, to disclose her source. His decision turns heavily on the characterization of the relationship between the confidential source alleged to be Tyabji and O’Connor. His Honour says:

I am satisfied that if the source is an arm’s length person disclosing information to a member of the media out a sense of civic responsibility grounded in a desire to foster accountability and responsibility in Members of Parliament, the public interest in protecting the identity of such a source outweighs the public interest in ensuring the proper administration of justice. But I also am satisfied that if the source is a participant in a scheme to favour the interests of one side in an acrimonious family dispute, or is a participant in a politically motivated scheme to defame and discredit an elected politician, then the public interest in fostering the proper administration of justice outweighs the public interest in protecting a journalist’s anonymous source.

Mr. Justice Williamson said that he was unable to find which of the two categories into which the anonymous source alleged to be Tyabji fell, and therefore held that O’Connor had failed to meet her burden of establishing the privilege she claimed.

This puts journalists in a particular dilemma given the evidence available to prove a source’s motive will always be limited if anonymity is to be maintained. The Globe and others report that the decision will be appealed. It seems like one that may have some legs.

Lougheed v. Wilson, 2010 BCSC 1871.

Case Report – SCC says no class privilege to protect journalists’ confidential sources in Quebec

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.

Globe and Mail v. Canada (Attorney General), 2010 SCC 41.

Case Report – NSSC comments on litigation privilege and internal investigations

On October 5th, Justice Moir of the Nova Scotia Supreme Court made the following comment about litigation privilege and internal investigations:

Chrusz cannot stand for the proposition that once an investigation finds wrongdoing, and litigation is anticipated, litigation privilege attaches. That would be contrary to established principle: receiving legal advice about the litigation, or aiding its conduct, has to become the dominant purpose of the investigation.

Employers who investigate an employee for wrongdoing will have termination of employment in mind. Employers who have termination in mind will often reasonably anticipate litigation. However, such investigations are usually for the dominant purposes of getting to the bottom of the circumstances, and deciding what to do about the person’s employment once the facts are known.

His Honour’s judgment is otherwise a fairly fact-specific treatment of various privilege claims.

Saturley v. CIBC World Markets Inc., 2010 NSSC 361 (CanLII).

Case Report – BCCA telephone recording case deals with spousal privilege and the reasonable expectation of privacy concept

The British Columbia Court of Appeal issued a judgement on July 21st with two findings of note – one on the whether spousal privilege applies to communications intercepted by a third-party and another on the protection of information subject to a reduced yet reasonable expectation of privacy.

The matter involved recordings of telephone calls made from a correctional facility by an accused person, some to his spouse. The facility received a production order, listened to the recordings for the first time and turned them over to the Crown. They apparently contained statements favorable to the theory on which the Crown’s prosecution was based but no “direct evidence of criminal activity.” The accused person argued that the recordings were inadmissible based on spousal privilege and section 8 of the Charter.

The Court first rejected the spousal privilege claim. It held that, under the Canada Evidence Act, spousal privilege does not preclude a third-party from giving evidence about statements made from one spouse to another. The one exception, explained the Court, is for private communications between spouses that are intercepted by a lawful wiretap – a result derived from a provision the Criminal Code that deems intercepted communications to maintain their privileged status. The Court held that the deeming provision (section 189(6)) did not apply in the circumstances.

The Court then upheld the section 8 claim. It held that the production order served on the facility was invalid because of insufficient grounds and held that disclosure by the facility to the Crown was therefore made in breach of the accused person’s reduced but nonetheless reasonable expectation of privacy. In reaching this finding, the Court gave effect to the regime for recording and reviewing inmate telephone calls authorized under the British Columbia Correction Act, which recognizes a facility’s right to record, review and disclose calls within certain parameters. This privacy-security balancing regime led the Court to apply the reasonable expectation of privacy concept in a more nuanced manner than the “all or nothing” manner in which it is often applied.

R. v. Siniscalchi, 2010 BCCA 534 (CanLII).

Case Report – Court says lawyer’s seized hard drives ought to be stored by a neutral

On April 20th, the Ontario Superior Court of Justice ordered a number of computers and hard drives that had been seized from a lawyer as part of a child pornography investigation to be stored by a neutral examiner.

The devices were seized, immediately sealed and stored by the local police. Presumably, they all contained solicitor-client communications belonging to the lawyers’ clients. The Attorney General and the Law Society agreed to a protocol that involved retaining a neutral examiner to image hard drives and use a non-manual review process to look for and extract any images of child pornography. They did not, however, agree on where the drives and images would be stored.

The Law Society argued that the risk of an inadvertent security breach at the police station required that the devices be stored either at the Court or by the neutral expert. It argued that public confidence in the administration of justice would be compromised if privilege holders learned that communications related to their criminal defence were in the care and the control of the police.

Though she held that the risk of a breach of privilege was minimal, Justice Hennessy nonetheless ordered the devices to be stored by the neutral. She said:

This Court has a duty to ensure that all safeguards are put in place to avoid completely or reduce as completely as possible, any risk of a breach of solicitor-client privilege. This duty is particularly onerous in this situation, where any breach of the privilege would put the privileged material in the hands of the police who are adverse in interest to the privilege holders. This is not the case of a generic protection fo privilege against any disclosure to an uninterested person. The consequences of a breach of the solicitor-client privilege in this case go to fundamental principles. At this early stage of the proceedings, the Law Society does not have to show that there is a probability f a breach of the privilege if the seized devices are stored with the Timmins Police. We are in a preventative situation now. Fortunately, we are not dealing reactively to an allegation of an inadvertent breach.

According to Justice Hennessy, the Attorney General, though objecting the Law Society’s position, did not identify any specific concerns with storage at the neutral’s facility. She also noted that her order was based on special circumstances, a likely reference to the fact that the police investigation did not require an examination of any solicitor-client communications.

Attorney General v. Law Society, 2010 ONSC 2150.

Case Report – Alberta Court says statutory privilege does not preclude an action

On July 14th, the Alberta Court of Appeal held that the privilege embodied in section 241 of the Income Tax Act was not a basis for striking a claim against the federal government based on the manner in which it administers the ITA.

The Court held that it was not clear section 241 would preclude the plaintiff from obtaining evidence from the government. More broadly, it held that a party’s ability to obtain evidence is not a proper consideration on a motion to strike:

In any event, the section does not preclude the plaintiff from deriving the evidence it needs from sources other than the defendant Canada. It is reasonably common for a defendant to be in the possession of relevant and material information which need not be disclosed because it is privileged, but that does not prevent the lawsuit from proceeding. The plaintiff can try to prove its case without that evidence. Further, whether a pleading discloses a cause of action is a distinct issue from whether the plaintiff will be successful in marshalling the evidence needed to prove that cause of action. Section 241 is not determinative of this appeal.

The Court ultimately did strike the claim as disclosing no reasonable cause of action based on a finding that the government did not owe the plaintiff a private law duty of care.

783783 Alberta Ltd. v. Canada (Attorney General), 2010 ABCA 226 (CanLII).

Case Report – Law enforcement benefits from inadvertently hearing lawyer’s telephone call

On June 10th, the New Brunswick Court of Appeal declined to exclude a recorded telephone conversation in which a lawyer charged with obstruction of justice allegedly counseled a client’s wife to destroy evidence.

The RCMP civilian agent who listened to the call pursuant to an authorization to intercept missed the first part of the call in which the accused identified himself as a lawyer. She listened, heard the caller make statements she considered to be obstructive in nature and conveyed what she had heard to her supervisor. When she played the recording back to the supervisor, they both heard the first part of the call and realized the caller was a lawyer. In breach of the terms of the authorization, they nonetheless continued to listen and only then sealed the communication.

The Court of Appeal held that the RCMP breached section 8 of the Charter by failing to stop and seal the recording as soon as it was clear the call was from a lawyer. It declined, however, to exclude the recording from evidence. In doing so, the Court was influenced by the fact that the communication was heard in in full through inadvertence and that it was not, in fact, subject to solicitor-client privilege.

Case Report – Court opines on authority to waive privilege

Last December 16th, the Nova Scotia Supreme Court held that the province’s Department of Transportation and Infrastructure Renewal waived privilege by providing a summary of an opinion to citizen who later requested a copy of the full opinion in an FOI request.

The Court had little trouble finding an intention to waive, noting that the only remaining concern of the Department was over releasing a letter that embodied the opinion and not the opinion itself. More interesting is the Court’s rejection of the Department argument that waiver of privilege held by the provincial crown must be waived by the executive branch. It held that the authority to waive privilege in an opinion prepared for the crown is at least coextensive with the authority to acquire an such an opinion.

In the current edition of Canadian Lawyer magazine the requester’s council says, “I think this decision is the first time that a court has stated that a civil servant can waive privilege over legal advice received within his authority.”

Peach v. Nova Scotia (Transportation and Infrastructure Renewal), 2010 NSSC 91.

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.

Case Report – Federal Court says OPC can’t demand evidence supporting a privilege claim

On April 20th, the Federal Court issued an order in a PIPEDA application about an access request and a solicitor-client privilege claim made by Air Canada. For the most part, the Court held that Air Canada’s privilege claim was justified. In doing so, it held that the Privacy Commissioner did not have the power to compel Air Canada to justify its claim by filing an affidavit.

Although the burden rests with Air Canada to justify its allegation of privilege, it is this Court, and not the Privacy Commissioner, who is the decision maker. Air Canada could have refused without giving any particulars whatsoever. The Privacy Commissioner would then have had to seek one of the many avenues of redress to this Court which are available to her. In such a case, even if it turned out that Air Canada’s refusal was not capricious, and that the documents were privileged, Air Canada might face serious cost consequences for unnecessarily taking up the Court’s time.

…

Of course, the Privacy Commissioner had the right to inform Air Canada that if it did not persuade her that its assertion was well founded, she would come to this Court, as indeed she has. However, since she could not make a decision, it follows that she could not stipulate the steps Air Canada had to take to satisfy her that the documents were truly privileged.

The remainder of the decision is more driven by facts, though the Court did make a notable finding that an incident report – prepared by employees and forwarded to the company’s legal department as a matter of procedure – was subject to both solicitor-client and litigation privilege. The Court also declined to award damages for the one part of Air Canada’s privilege claim that it did not uphold.

Privacy Commissioner of Canada v. Air Canada, 2010 FC 429 (CanLII).