Friday, May 7, 2010
In an 8-1 decision, the Supreme Court of Canada has ruled that the media does not have a constitutional right to protect its sources. Instead, such assertions of privilege must be decided case-by-case. The National Post had asserted the right in a 2001 incident in which one of its reporters had received an unmarked envelope containing information during the course of his investigation into the government of Quebec Prime Minister Jean Chretien. He was ordered to turn over the documents and refused.
Said the Court in part,
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 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.
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 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.