Journalist-Confidential Source Relationship or Journalist-Criminal Wrongdoer Relationship

Friday's Court of Appeal decision in R. v. The National Post, 2008 ONCA 139 was a decisive blow to the concept of journalist-confidential source privilege.

Put briefly, a search warrant issued for material that would identify the source of certain information given to the National Post. The information, which may or may not have been false, suggested impropriety by the then sitting Prime Minister.

The Court, while declining to say journalist-confidential source privilege would never apply, held that the need for law enforcement greatly over weighed any benefit to society arising from keeping confidential sources confidential.
The Court said "the considerations favouring disclosure of the document and the envelope sharply outweigh those favouring confidentiality.  Indeed, as we view the case, the law enforcement interest in disclosure is overwhelming."

A sense of the issues involved may seen from the Court asking whether the relationship should be characterized broadly as a journalist-confidential source relationship, or more narrowly as a journalist-criminal wrongdoer relationship. The Court seems to have supported the broader view but even considering the question in this way is suggestive.

An application for leave to appeal to the Supreme Court may well follow.

Some of the Court's comments follow:

"[115]      The document and the envelope are not merely pieces of evidence tending to show that a crime has been committed.  They are the very actus reus of the alleged crime.  For the purpose of demonstrating that a crime was committed – the crime of uttering a forged document to the National Post – evidence is not available from another source.  Gallant so testified in the information to obtain, and the respondents did not suggest otherwise.  Moreover, nothing in the amplified record points to any other avenue of investigation of this discrete offence.  Therefore, without the document and the envelope and the ability to conduct forensic testing of them there can be no further investigation, no ability to get at the truth. 

[116]      We do not diminish the press' important role in uncovering and reporting an alleged wrongdoing.  But in our society it is the police who are charged with the crucial role of investigating and prosecuting crime.  And, to paraphrase what White J. said in Branzburg v. Hayes at p. 692, it is not necessarily better to write about crime than to do something about it.

[117]      And this is no ordinary crime.  This is an especially grave and heinous crime.  Assuming the document was forged, either the forger or some other person sent it to the National Post to create controversy and undermine the authority of a sitting Prime Minister of Canada.  The National Post itself admitted that if the document was forged, it would be evidence of a criminal conspiracy to force a duly elected Prime Minister from office.

[118]      Moreover, while the law enforcement interest is overwhelming, the press' legitimate interest in confidentiality is attenuated.  Although, in pursuit of their constitutional right to gather and disseminate the news, journalists are entitled to protect their sources, that entitlement loses much of its force when journalists use it to protect the identity of a potential criminal or to conceal possible evidence of a crime.  The press, like any one else, should have "an interest in seeing that crimes are investigated and prosecuted": see Lessard at 535.  Society expects as much.  Instead of furthering that interest, however, the respondents are shielding a potential wrongdoer from prosecution for a serious crime by refusing to deliver to the authorities the items representing the actus reus of the offence. 

[119]      McIntosh himself recognized that there must be at least some limits on the press' entitlement to protect the confidentiality of its sources.  That is why he told X that his promise of confidentiality would remain binding only so long as he believed that he was not being misled.  However, once the court concluded that there were reasonable and probable grounds to believe the document was a forgery, McIntosh could not arrogate to himself the right to decide whether X was a wrongdoer."
James Morton
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