No absolute right to protection of journalist's source of information (Canada Supreme Court)

7 May 2010, Ottawa. In R v. National Post the Supreme Court dismissed an appeal from a confirmation of a search warrant and related order, compelling the editor of the National Post to cooperate with the Police. The appellant had claimed that these orders breached the Canadian Charter of Rights & Freedoms, article 2(b) or article 8.

Article 2 of the Canadian Charter of Rights & Freedoms states that 'Everyone has the following fundamental freedoms... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication' while article 8 states that 'Everyone has the right to be secure against unreasonable search or seizure'.

A journalist (‘M’) employed by the National Post investigated information received from a secret source, which implicated a former Canadian Prime Minister in improper loans given by a federal-owned bank, to a private business. 'M' believed his source to be genuine, reliable source, but when he faxed copies of the documents to the Prime Minister's office and other entities, they inisted it was a forgery. 'M' refused to hand over the documents, or to reveal the source. This led to the issuing of the warrants; the source of the information feared criminal prosecution, should the authorities lift his fingerprints from the documents, including the envelope.

The Court recognised the public right to information about matters of public interest, and that in certain situations the media had to offer anonymity in order to obtain certain information. However the Court held that the public’s interest in being informed about matters that might only be revealed by secret sources, is not absolute. It had to be balanced against other important public interests, including the investigation of a crime.

This case involved an attempt by a person or persons unknown to dupe the appellants into publishing a document which, on its face, seemed to implicate a former Prime Minister of Canada in a serious financial conflict of interest. The Police had reasonable grounds to believe the documents to be a forgery; thus the document and envelope that came into M’s possession were physical evidence reasonably linked to a serious crime. While freedom to publish the news included freedom to gather the news, upholding promises of confidentiality under such circumstances was unacceptable, because it would compromise, amongst other things, law enforcement.

The Court did not actually exclude the possibility of protecting journalists from compelled disclosure of secret sources; a journalist's claim for protection of secret sources had to be assessed on a case-by-case basis. The Court further ruled that a claim for protection of secret sources had to satisfy all four of the Wigmore Criteria which require that i. the communication originates in a confidence that the identity of the informant will not be disclosed; ii. the confidence is essential to the relationship in which the communication arises; iii. the relationship is one which should be sedulously fostered in the public good; and iv. the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. The Supreme Court of Appeal ruled that the fourth criterion was not satisfied.  

To read the actual judgement click here