Journalists cannot protect confidential sources: Canadian Supreme Court

In a judgment delivered yesterday entitled R. v. National Post, the Supreme Court of Canada by majority had declared that while "courts should strive to uphold the special position of the media and protect the media’s secret sources where such protection is in the public interest", such immunity available with the journalist to keep his source secret is not absolute, and the court can direct otherwise in the interest of broader public interest "even if the end result proves to be information that may lead to the identification of the secret source".

The majority opinion, notes the factual circumstances leading to this interpretation of law in the following terms;

This dispute is a controversy of undoubted public importance. It involves an attempt by a person or persons unknown to dupe the National Post into publishing an allegedly forged bank document which, on its face, implicated the then Prime Minister of Canada, Jean Chrétien, in a serious financial conflict of interest. The courts below concluded that the police possess reasonable and probable grounds to believe that the inculpatory entries on the “leaked” document are false. The document, if authentic, would have suggested that at the same time the Prime Minister was said to be exerting influence on the federal Business Development Bank of Canada (“BDBC”) to grant a $615,000 loan to the Auberge Grand-Mère, a private business in his riding, the Auberge Grand-Mère allegedly owed the Chrétien family investment company $23,040. Unless the Auberge Grand-Mère could be saved from insolvency, the story went, the debt would likely go unpaid. The Prime Minister’s private financial interest, on this theory of events, conflicted with his public duty. Some in the media referred to cluster of events around the loan controversy as “Shawinigate”.

In these circumstances, being required to allow access to the journalist's source in order to ensure that investigation was conducted properly and the alarming allegations were dealt with seriously and in full face of all possible evidence available, the majority opinion clarified the law that the State does not violate the freedom of the press guaranteed by the Canadian Charter of Rights and Freedoms when it compels a journalist to produce information that could identify the source.

Some of the interesting observations made in regard to the freedom of expression and press and the competing interests of higher norm can be noted as under;

[26] The investigation and punishment of crime is vital in a society based on the rule of law but so is the freedom of the press and other media of communication. The general principle that the public has the right to every person’s evidence is not absolute. Narrow exceptions have been recognized as necessary to further precisely defined and overriding public interests. Thus the identity of the police informant is shielded from an accused. A civil litigant has no right to know what the opposing party privately confided to its lawyer. Spouses cannot generally be compelled to testify against each other. Information pertaining to national security and Cabinet confidences may be withheld on the basis of what is called public interest immunity.

[28] It is well established that freedom of expression protects readers and listeners as well as writers and speakers. It is in the context of the public right to knowledge about matters of public interest that the legal position of the confidential source or whistleblower must be located. The public has an interest in effective law enforcement. The public also has an interest in being informed about matters of importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. ...

[30] If a reporter, usually in consultation with an editor, gives an assurance of confidentiality, professional journalistic ethics understandably command that the promise be kept. The courts have long accepted the desirability of avoiding where possible putting a journalist in the position of breaking a promise of confidentiality or being held in contempt of court. See, e.g. St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 230 C.C.C. (3d) 199. Nevertheless, most journalistic codes of ethics recognize that the promise of confidentiality cannot be absolute, see e.g. the Canadian Association of Journalists’ Guidelines for Investigative Journalism regarding “[u]se of confidential and anonymous sources”.

[63] In a test of balancing the public interest in disclosure versus the public interest in confidentiality neither the journalist nor the secret source “owns” the privilege. Thus where a secret source decides for whatever reason to cast aside the cloak of anonymity the public interest no longer “sedulously fosters” the continuation of the confidential relationship in preference to openness and the search for the truth. In such a case the journalist would have no basis to seek to restrain the selfouting of the secret source. On the other hand, where a journalist decides that the confidentiality arrangement no longer binds (as for example, in this case, if Mr. McIntosh had concluded that the forged bank records had been provided by the source to mislead the National Post deliberately, and had thereby, in his view, forfeited its protection), the balance would again tilt in favour of disclosure. The role and function of the privilege is to facilitate the freedom of expression of the media and their readers and listeners. Where the journalist concludes that the relationship in a particular case should no longer be “sedulously” fostered, the substratum of the claimed privilege is eliminated. The public interest would no longer be served in the particular case by suppression of the identity, but of course in the event of such disclosure, the source might have some sort of private law claim for breach of contract or breach of confidence or other private common law cause of action. Such private law remedies are not before us in this appeal.

[90] The appellants claim that the assistance order turns the editor-in-chief into an “agent of the police” in the collection of evidence. This is overly dramatic. Editors, journalists and sources do not, by reason of the important roles they play, cease to be members of the community in which they live. The claim for privilege in this case is rejected The editor-in-chief, as every other member of the community, is required in the ordinary way to respect the law. From the media perspective assistance orders requiring the surrender of the document are surely preferable to a physical search of the media premises. In my view, the assistance order was reasonable within the meaning of s. 8 of the Charter.

Have a look at the decision.