The courts will respect a promise of confidentiality given to a secret source by a journalist but only to a limited degree

R. v. National Post, 2010 SCC 16 was released this morning.  A summary follows:

 

The National Post employed M as a journalist.  M investigated whether C, then Prime Minister of Canada, was improperly involved with a loan from a federally funded bank to a hotel in C's riding which allegedly owed a debt to C's family investment company.  X, a secret source, provided M with relevant information in exchange for a blanket, unconditional promise of confidentiality.  In 2001, M received a sealed envelope in the mail that contained a document which appeared to be the bank's authorization of its loan to the hotel.  If genuine, it could show that C had a conflict of interest in relation to the loan.  M faxed copies of the document to the bank, to the Prime Minister's office, and to a lawyer for the Prime Minister.  All three said that the document was a forgery.  Shortly thereafter, X met M.  X described receiving the document anonymously in the mail, discarding the original envelope, and passing the document on to M in the belief that it was genuine. M was satisfied that X was a reliable source who did not believe that the document was a forgery when he or she forwarded it to M.  X feared that fingerprint or DNA analysis might reveal his or her identity and asked M to destroy the document and the envelope.  M refused but told X that his undertaking of confidentiality would remain binding as long as he believed that X had not deliberately misled him.

 

The bank complained to the RCMP and an officer asked the appellants to produce the document and the envelope as physical evidence of the alleged crimes i.e. the forgery itself and the "uttering" (or putting into circulation) of the doctored bank records.  They refused and M declined to identify his source.

 

The officer applied for a search warrant and an assistance order compelling M's editor to assist the police in locating the document and the envelope.  He intended to submit them for forensic testing to determine if they carried fingerprints or other identifying markings (including DNA) which might assist in identifying the source of the document.  Although the Crown informed the judge that the National Post had requested notification of the application, the hearing proceeded ex parte and a search warrant and an assistance order were issued.

 

 

The warrant and the order provided the appellants with one month before the RCMP could search the National Post's premises and included other terms intended to accommodate the needs of the National Post as a media entity.  The appellants applied to quash the warrant and assistance order.  The reviewing judge held that there was sufficient information to conclude the document was a forgery but that there was only a remote and speculative possibility that disclosure of the document and the envelope would advance a criminal investigation.  She set aside the search warrant and the assistance order.  The Court of Appeal reversed that decision and reinstated the search warrant and the assistance order.  In this Court, the appellants and supporting interveners argued that the warrant and the order should be quashed because they infringe s. 2(b) or s. 8 of the Canadian Charter of Rights and Freedoms, or because the secret sources are protected by the common law of privilege.

 

Held (Abella J. dissenting):  The appeal should be dismissed.

 

 

Per McLachlin C.J. and Binnie, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.:  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 information 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 public importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality.  The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions.  There is a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private institutions.  The appellants and their expert witnesses make a convincing case that unless the media can offer anonymity in situations where sources would otherwise dry‑up, freedom of expression in debate on matters of public interest would be badly compromised.  Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.

 

In appropriate circumstances, accordingly, the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor.  The public's interest in being informed about matters that might only be revealed by secret sources, however, is not absolute.  It must be balanced against other important public interests, including the investigation of crime.  In some situations, the public's interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence.

 

 

This case involves an attempt by person(s) unknown to dupe the appellants into publishing a document which, on its face, implicated a former Prime Minister of Canada in a serious financial conflict of interest. The appellants were unable to confirm the document's authenticity and the police have reasonable grounds to believe that the document is a forgery.  The document and envelope that came into M's possession constitute physical evidence reasonably linked to a serious crime.  The police seek to subject this material to forensic analysis.  A search to retrieve the physical instrumentality by which the offence was allegedly committed would likely satisfy the test in s. 487 of the Criminal Code, even if (as the reviewing judge predicted) forensic analysis of the document and the envelope do not shed light on the identity of the offender. The document and the envelope are not merely pieces of evidence tending to show that a crime has been committed.  They constitute the actus reus or corpus delicti of the alleged offences.

 

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 Wigmore criteria provide a workable structure within which to assess, in light of society's evolving values, the sometimes‑competing interests of free expression and the administration of justice and other values that promote the public interest.  This will provide the necessary flexibility and an opportunity for growth that is essential to the proper function of the common law.

 

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.  DNA analysis is capable of producing results even under exceptionally unpromising circumstances.  The police should not be prevented from pursuing well‑established modes of forensic analysis of relevant physical evidence on the basis that in the end such analysis may prove to be unsuccessful.

 

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 police need not accept X's anonymous, uncorroborated and self‑exculpatory statements to a third party (M) as a reason to terminate their investigation of the physical evidence any more than they need accept the disclaimers of any other potential witness to a crime, especially when the witness may also be the perpetrator.

 

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.

 

Per LeBel J.:  Claims of journalist‑source privilege should be resolved on a case‑by‑case basis applying the Wigmore criteria, and there is agreement with the majority's weighing of the relevant rights and interests under the fourth criterion of the analysis.

 

There is agreement with Abella J. that when an application for a search warrant is made against a media organization, there is a presumptive requirement to give notice of the application to the affected organization.  The media play a key role in disseminating information and triggering debate on public issues.  The process of applying for search warrants should be sensitive to the need to prevent undue or overly intrusive interference in media operations and affected media organizations should be able to raise their concerns at the first opportunity.  The requirement to give notice may be waived in urgent situations, in which case the issuing judge should craft conditions to limit interference with the media organization's operations.  In this case, since the lack of notice did not make the search unreasonable and the issuing judge proceeded on the basis of established law, the search warrant should not be quashed.

 

 

Per Abella J. (dissenting):  Journalist‑source privilege should be assessed on a case‑by‑case basis.  The balancing of the interests of the press against other societal interests, such as crime prevention, prosecution and investigation, should be done in accordance with the four Wigmore criteria, infused with Charter values.  In this case, the search warrant and assistance order should be quashed. The criteria are met, including the fourth criterion, which requires the claimant to demonstrate that the injury that would inure to the relationship by the disclosure of the communications is greater than the benefit thereby gained for the correct disposal of the litigation.  The harm caused by the disclosure of the identity of the confidential source in this case is far weightier on the scales than any benefit to the investigation of the crime.

 

 

                  The media's role in disseminating information is pivotal in its contribution to public debate, and the use of confidential sources can be an integral part of the responsible gathering of the news and the communication of  matters of public interest.  Several jurisdictions have already recognized the importance of confidential sources by granting, legislatively or judicially, some form of qualified privilege to journalists. The chilling effect that could result from the compelled exposure of confidential journalistic sources also cannot be ignored.  In the case before us, X's confidentiality was crucial to M's ability to write on a subject of public interest.  M had prior positive experiences with X where he had been able to confirm the authenticity of information provided by X via an intermediary.  He also took steps to assure himself of X's credibility and integrity in connection with the latest document by asking for a confidential affidavit and telling X that his/her confidentiality would only be protected if M were satisfied that he was not being misled.  Where a journalist has taken credible and reasonable steps to determine the authenticity and reliability of a source, one should respect his or her professional judgment and pause before trespassing on the confidentiality which is the source of the relationship.  In this case, demonstrable and profound injury to the journalist/source relationship will result from disclosure of the documents and potentially of the identity of the source. 

 

On the other side of the balancing exercise, the benefits of disclosure range from speculative to negligible.  While it is undisputed that the investigation of crime is an important public objective, the evidence sought by the state is of only questionable assistance in this case.  The police hoped to find DNA and fingerprint evidence on the envelope and the document which they thought might reveal the identity of the source of the alleged forgery.  However, there is a fatal disconnect between the envelope, the document, the identity of X and the alleged forgery.  X received the document anonymously and discarded the original envelope in which he/she received the document.  Since X does not know the identity of the sender, learning X's identity will yield virtually no evidence that could assist in determining who was responsible for the alleged forgery.  Moreover, the more documents are manipulated, the less likely the chances of obtaining fingerprints.  Both the document and the envelope had been extensively handled.  X is therefore in no position to provide any information of assistance to the investigation and is, in any event, under no legal obligation to speak to the police.  The benefit to the forgery investigation of getting the documents is, therefore, at best marginal.  The only remaining purpose for learning the confidential source's identity is to discover who created this public controversy.  This by itself is not an acceptable basis for interfering with freedom of the press.  Lastly, the remote possibility of resolving the debt forgery — a crime of moderate seriousness — is far from sufficiently significant to outweigh the public benefit in protecting a rigorously thorough and responsible press.

 

 

A search warrant of media premises is a particularly serious intrusion, and a decision should not be made about its propriety without submissions from the party most affected.  The operating presumption should be that the media's unique institutional character entitles it to notice when a search warrant is sought against it unless there are urgent circumstances justifying an ex parte hearing.  No such notice was given to the National Post and there was no such urgency.  It therefore lost the opportunity to make timely submissions on the confidential nature of the source and the serious informational gaps in the Information to Obtain.  Had the fuller record and their arguments been known, the outcome of the hearing might have been different.