Monday, October 25, 2010
In Globe and Mail v. Attorney General of Canada, the Supreme Court has held that the laws of Quebec can support a reporter's source privilege or a journalist's right to protect his sources in civil cases. The Court established a test in order to balance such a privilege against the government's right to require the journalist to provide information.
There is therefore a basis in the laws of Quebec for a journalist-source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec. This approach conforms both with s. 2(b) of the Canadian Charter and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission of the intervener Canadian Civil Liberties Association that the Wigmore framework cannot differentiate between relationships that have a constitutional dimension and those that do not. It is clear that it does so already (R. v. Gruenke,  3 S.C.R. 263; National Post). This approach also accords with the law of evidence in Quebec. The C.C.Q. grants judges the authority to exclude evidence or testimony in the event of a breach of the Quebec Charter. It is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his s. 2(b) Canadian Charter and s. 3 Quebec Charter rights are found to be paramount. Indeed, I would add that art. 46 of the C.C.P., which provides for the general powers of the Superior Court, appears to provide its judges with the necessary authority to do so on a case-by-case basis:
The courts and judges have all the powers necessary for the exercise of their jurisdiction.
They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.
...Whether they rely explicitly on the Wigmore framework or not, what the lower court decisions ultimately demonstrate is the need for a balancing exercise between the competing rights or interests at stake. To paraphrase my colleague Justice Binnie in National Post, this all sounds very much like Wigmore where, at the crucial fourth step, the question is whether the public interest served by protecting the identity of the informant outweighs the public interest in getting at the truth. Indeed, the Wigmore framework itself, when stripped to its core, is simply a taking into account of competing interests. The Wigmore criteria can therefore shape the structure of the analysis and the elements to be considered, in claims of journalist-source privilege brought in matters engaging the laws of Quebec.
...It is also a framework that is sufficiently flexible to take into account the variety of interests that may arise in any particular case, and those that are certain to arise in civil proceedings taking place in the common law provinces. The overarching issues raised by this appeal are of course not unique to the province of Quebec. The news media’s reach is borderless. This is further support for an approach that would result in consistency across the country, while preserving the distinctive legal context under the Civil Code.
As Justice Binnie noted in National Post, it is the fourth Wigmore factor that will do most of the grunt work in the analysis of any claim for journalist-source privilege. He set out a number of relevant considerations in the determination of whether physical evidence must be disclosed in the criminal context (see paras. 61-62). It is therefore helpful, particularly given that this issue is being remitted to the Superior Court for reconsideration, to highlight some of the considerations that will be relevant to the court’s balancing exercise at the fourth Wigmore stage, in claims arising in the context of civil litigation.