Friday, October 22, 2010

No class privilege for media

Globe and Mail v. Canada (Attorney General), 2010 SCC 41 was just released by the Supreme Court. The Court declined to recognise media privilege as a class and applied the Wigmore criterai instead. A summary follows.

There is no basis for recognizing a class-based constitutional or quasi-constitutional journalist-source privilege under either the Canadian Charter or the Quebec Charter. For reasons set out in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, and in particular the difficulty in defining such a heterogenous and ill-defined group of writers and speakers with the necessary degree of certainty, freedom of expression under the Canadian Charter and the Quebec Charter cannot constitute the basis for recognizing journalist-source privilege. Similarly, s. 44 of the Quebec Charter, which protects access to information, does not broaden the scope of the right beyond what is defined by the provision itself. While the s. 44 right can inform the protection of the confidential relationship between journalists and their sources, it cannot constitute the basis for recognizing the privilege. Finally, because journalists are not bound to professional secrecy by law, s. 9 of the Quebec Charter, which protects professional secrecy, cannot ground a quasi-constitutional right to the protection of media sources. There is, however, 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 case-by-case privilege in the criminal law context is equally relevant for civil litigation matters subject to the laws of Quebec; recognition would result in consistency across the country, while preserving the distinctive legal context under the Civil Code of Quebec. This case-by-case approach is consistent with the overarching principles set out in the Civil Code, the Quebec Charter and the Canadian Charter, and conforms with the law of evidence in Quebec as found in the Civil Code and the Code of Civil Procedure. It is also sufficiently flexible to take into account the variety of interests that may arise in any particular case.

Therefore, under the proposed test, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate first that the questions are relevant. If the questions are relevant, the court must then consider the four Wigmore factors: (1) the relationship must originate in a confidence that the source's identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth. At the crucial fourth Wigmore factor, the court must balance the importance of disclosure to the administration of justice, against the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context specific manner, having regard to the particular demand for disclosure at issue. The considerations relevant at the fourth Wigmore stage include: the stage of the proceeding when a claim of privilege is raised; the centrality of the issue to the dispute; whether the journalist is a party to the litigation, or simply a witness; whether the facts, information or testimony are available by any other means; the degree of public importance the journalist's story; and whether the story has been published and therefore already in the public domain. In this case, the Superior Court judge erred in concluding that it was preferable to compel L's answers on cross-examination. L was entitled to have the questions put to him challenged for relevancy, and his claim for privilege rigorously tested against the Wigmore criteria. In particular, if the judge concluded that the first three factors favoured disclosure, he was then required to ask whether, on balance, the public interest in maintaining journalist-source confidentiality outweighed the importance of disclosure to the administration of justice. The public interest here, is based largely on whether the questions would tend to reveal the identity of L's confidential source. Ultimately, these matters are for the judge to determine, but in this case they were never considered because neither party was permitted to make submissions or tender evidence on the issue.

With respect to the publication ban appeal, the Superior Court's order must be assessed for what it is: a court-ordered publication ban which had the effect of limiting L's s. 2(b) freedom of expression Canadian Charter rights. The Superior Court judge therefore erred in not applying the Dagenais/Mentuck framework. The order was made without notice, without application and without the benefit of formal submissions from either party. By proceeding in this manner, in a case where there was no suggestion of urgency or delay inherent in hearing submissions that would prejudice either party, the Superior Court violated one of the fundamental rules of the adversarial process: it denied the parties an opportunity to be heard before deciding an issue that affected their rights. This, in itself, is sufficient to allow the appeal. Considering the publication ban on its merits, maintaining the confidentiality of settlement negotiations is a public policy goal of the utmost importance. However, confidentiality undertakings bind only the parties and their agents. Neither L nor the Globe and Mail was a party to the settlement negotiations. The wrong was committed by the government source who provided L with the information. Nothing in the record suggests that L was anything other than a beneficiary of the source's desire to breach confidentiality. L was not required to ensure that the information was provided to him without the source breaching any of her legal obligations and he was under no obligation to act as her legal adviser. In any event, Polygone offered no tangible proof that its ability to effectively engage in settlement negotiations with the government has been irreparably harmed, nor has it offered any evidence of a serious risk to the administration of justice. At the time L's article was published, the fact that the parties were engaged in settlement negotiations was already a matter of public record. Even if the ban were necessary to prevent a serious risk to the administration of justice, its salutary effects do not outweigh its deleterious effects which are serious. Upholding the order would prevent the story from coming to light, stifling the media's exercise of their constitutionally mandated role to report stories of public interest, such as one where the federal government is seeking to recover a considerable amount of public money because of an alleged fraud against a government program. Given the result in the journalist-source privilege and publication ban appeals, the discontinuance appeal is moot.

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