Cases

R v. National Post

January 21, 2004 (Ont. SCJ) ONSC M86/02

The National Post received a brown envelope from a confidential source, in connection with the Shawinigate scandal involving then Prime Minister Chretien. The envelope contained what appeared to be a document generated within the Business Development Bank of Canada to document a loan application by M. Duhaime, the owner of the Grand-Mere Inn. It purported to show that at the time of the loan application, M. Duhaime intended to use some of the proceeds to repay a small debt to the Prime Minister's holding company JAC Consultants Inc. This would have been problematic, if true, in the face of the Prime Minister's admission that he had indeed spoken to the President of the Bank with a view to encouraging appoval of the loan application.

When the National Post sought to confirm the details in the document, its fax to the Bank and to the Prime Minister's office met with immediate denials of its authenticity, and threats of liability for libel. Within a day, the Bank also took the contradictory position that the document was confidential, and should be returned. The Post did not publish while considering these positions. The document was first published by other media reporting on a search warrant application obtained for a search on the premises of the former Bank President.

Meanwhile, the Bank asked the RCMP to investigate the leak. The RCMP eventually obtained a search warrant and Assistance Order against the National Post and its Editor-in-Chief, which the Post sought to quash. The RCMP wanted to obtain the original document and the brown envelope to check the fingerprints and saliva under the stamp for DNA of the Post's confidential source. When they learned that the Post reporter had secured the document in an undisclosed location, the RCMP obtained the Assistance Order to order the Editor-in-Chief to obtain the document from the reporter and make it available to the police.

The Post's challenge was joined by the Globe and Mail, and CBC.

Justice Benotto quashed both the search warrant and the Assistance Order. While she found that the Assistance Order could be made in aid of a search warrant under the provisions of the Criminal Code, she held that both were made by the judge without jurisdiction. The judge had failed to give the Post notice of the application for the warrant. Notice would have permitted the Post to explain to the judge the importance of confidential sources in general, and in this case, and would have permitted a better balance to be achieved between freedom of the press and the pursuit of justice.

This judgment is noteworthy for many reasons. It is the first time in Canada that an Assistance Order has been used against the media, and it is a case that benefited from the evidence of 15 noted Canadian journalists on the importance of protecting confidential sources.

After noting 10 significant stories that would never have been published without confidential sources, the court found that there was evidence as well that sources would dry up in the absence of protection.

[49] Sources want confidentiality for a variety of reasons. They may, themselves, be breaching a duty of confidentiality. They may have stolen the information. They may fear economic reprisals. They may lose their jobs. They may fear for their safety. They may fear for the safety of their families.

[50] The Crown argues that the actions of these sources should not be encouraged. I disagree. If employee confidentiality were to trump conscience, there would be a licence for corporations, governments and other employers to operate without accountability.

The Court found that the traditional Wigmore privilege criteria are not "carved in stone" and should be expanded in the context of a review of a journalists' confidential sources and in light of the Charter protection for the press. The safeguards for media built into the Lessard decision in the Supreme Court of Canada also demanded extra care in this regard.

Additional portions of the court's rationale are likely to be quoted well into the future:

[61] The importance of the journalist-informant relationship is established by the evidence. If the journalist-informant relationship is undermined, society as a whole is affected. It is through confidential sources that matters of great public importance are made known. As corporate and public power increase, the ability of the average citizen to affect his or her world depends upon the information disseminated by the press. To deprive the media of an important tool in the gathering of news would affect society as a whole. The relationship is one that should be fostered.

and

[77] Freedom of expression is a cornerstone of our society. The ability of the public to know what its elected leaders are doing is fundamental to a democracy. We rely on the news media to provide us with this information. The expectation that a source will remain confidential is often the very reason people feel free to go to the press. Often the more explosive the story is, the greater the risk to the informant if he or she is exposed. Reputations, livelihoods and security may be at stake. Without confidentiality the press would not receive some information. Protection of the confidentiality serves the interests of the informant. In serving the interests of the informant, the interests of society are served to an even greater degree.

This judgment was delivered on the same day that eight Mounties arrived at 8 a.m. at the door of an Ottawa journalist's home to find the source of a leak in their ranks. The force of law contrasted starkly with the rule of law. Time will likely find that the judgment arrived not a minute too soon.

See R v. National Post