R v National Post, 2010 SCC 16 (7 May 2010)
In this case, the Canadian Supreme Court found that the guarantee of freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms (Canadian Charter) does not create a constitutionally entrenched immunity to protect journalists against the compelled disclosure of secret sources. The Court examined if there was nevertheless a common law privilege ‘to be applied in light of the important public interest in freedom of expression’ and found that this must be assessed on a case-by-case basis. In this case, the Court considered that the public interest in protection of the secret source did not outweigh the public interest in the production of physical evidence of the alleged crimes.
M, employed as a journalist by National Post, was investigating whether the then Prime Minister was involved in financial fraud and forgery. X, a secret source, provided M with relevant information on condition of confidentiality. X told M that he received a document anonymously in the mail and discarded the original envelope. M was satisfied that X was a reliable source who did not believe the document to be a forgery. M faxed copies of the document to the Prime Minister’s office and to a lawyer for the Prime Minister, all of whom responded that the document was a forgery.
National Post subsequently refused requests from the police to obtain the document and envelope, and M declined to identify his source. The police obtained a search warrant and assistance order and National Post applied to have the court orders set aside. The reviewing judge did so, but they were reinstated by the Ontario Court of Appeal.
In the Supreme Court, National Post and M (the appellants) claimed the search warrant and assistance order were incompatible with s 2(b) of the Canadian Charter (which guarantees freedom of expression) or that they were otherwise unreasonable under s 8, which guarantees ‘the right to be secure against unreasonable search and seizure’.
The Court initially dealt with the appellants’ claim that the guarantee of freedom of expression (s 2(b)) created a constitutionally entrenched immunity to protect journalists against the compelled disclosure of secret sources. The Court stated that ‘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’ and ‘accordingly, a judicial order to compel disclosure of a secret source would not in general violate s 2(b).’ It acknowledged that the European Court ‘locates journalist privilege in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, but [noted that it is] necessarily so because the Convention is the source of its jurisdiction.’
After concluding that there is no s 2(b) immunity, the Court examined if there is a common law privilege to be applied in light of freedom of expression. It found that a ‘case-by-case model of privilege’ should be used rather then a ‘class privilege model’. According to the Court, the assessment is to be made under Professor Wigmore’s criteria for establishing confidentiality in common law (as set out in M (A) v Ryan,  1 SCR 157, at para 30). Under this approach, a promise of confidentiality will be respected if the ‘media party’ proves all four of the following criteria:
- that the communication originated in confidence;
- that the confidence is essential to the relationship in which the communication arises;
- that 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 the truth.
The analysis under the fourth criterion ‘does most of the work’ according to the Court, and ‘underlying this analysis is the need to achieve proportionality in striking a balance amongst competing interests’. The weighing up will include ‘the nature and seriousness of the offence under investigation…the probative value of the evidence sought to be obtained, measured against the public interest in respecting the journalist’s promise of confidentiality…[and] the underlying purpose of the investigation.’
The Court held that this criteria provides a ‘workable structure’ which ‘will provide the necessary flexibility and opportunity for growth that is essential to the proper function of the common law.’
The Court noted that it is for the Court to decide when disclosure is required and not for individual journalists, and that that conclusion is not changed by an individual journalist’s belief in the good faith of his source. Confidentiality may be lost when ‘information [is] put into the public domain maliciously’. The Court further held that ‘this [case] is not the usual case of journalists seeking to avoid testifying about their secret sources;…[t]his is a physical evidence case and the documents are the very actus reus…of the alleged crime.’ Hence, immunity is situation specific and journalists have ‘no blanket right to suppress physical evidence of a crime’.
The Court then examined whether the court orders were ‘unreasonable’ within the meaning of s 8. The issuing judge proceeded ex parte but allowed one month between its issuance and execution and, according to the Court, it respected the special position of the media. The Court therefore concluded that the orders were properly issued and not unreasonable under s 8 of the Canadian Charter.
The appeal was dismissed.
Abella J, dissenting, was of the opinion that ‘the harm caused by the public disclosure of the identity of the confidential source…is far weightier then any benefit to the investigation of the crime’ and would hence have allowed the appeal. Abella J considered ‘the benefit to the forgery investigation of getting the documents …at best marginal’ and that also the fourth Wigmore criteria had been satisfied. Abella J also considered that when a journalist has taken ‘credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgment.’
Relevance to the Victorian Charter
Freedom of expression is protected in Victoria through s 15(2) of the Charter. This right can be restricted through an internal limit in s 15(3) and also through s 7(2) which provides for the reasonable limitation of rights protected by law.
This case can provide guidance on assessing when the right to freedom of expression can be restricted, particularly when balancing protection of journalistic sources with other public interests such as effective criminal investigation. The court suggested a case by case assessment of the journalist-confidential source privilege by using the common law ‘Wigmore criteria’. These criteria establish that the claimant must prove that the public interest in protecting the identity of the secret source from disclosure outweighs the public interest in getting the truth.
The decision is at www.canlii.org/en/ca/scc/doc/2010/2010scc16/2010scc16.html.
Susanna Hedenmark is a volunteer with the Human Rights Law Resource Centre