Experience Notable Cases Can a journalist claim “privilege” in communicating with a confidential source?

Can a journalist claim “privilege” in communicating with a confidential source?

May 07, 2010

Supreme Court sets out factors to consider when a journalist claims that their communications with a confidential source should be privileged

In R. v. National Post, the Supreme Court of Canada considered the circumstances in which a “journalist privilege” may arise between journalists and their confidential sources.

Background

McIntosh was a journalist employed by the National Post. He was investigating whether then-Prime Minister Jean Chrétien was engaged in a conflict of interest in relation to the lending activities of a federally funded bank. During the course of this investigation, McIntosh received a document from a secret source who had been providing information to McIntosh in confidence. The document appeared to substantiate the alleged conflict of interest. McIntosh sent the document to the bank, to the Prime Minister’s office and to a lawyer for the Prime Minister. These parties maintained that the document was a forgery.

The bank filed a complaint with the RCMP, which commenced an investigation. When the journalist and the National Post refused to produce the document and the envelope in which it was delivered, the RCMP obtained a search warrant to compel their production. The National Post succeeded in having the warrant and assistance order quashed, but the Court of Appeal overturned that decision. The National Post appealed, arguing that the source was protected under a journalist privilege arising from s. 2(b) of the Canadian Charter of Rights and Freedoms or the common law of privilege.

The Supreme Court’s decision

The Supreme Court of Canada held that there is no constitutional right to protect confidential sources. It also rejected the argument that there was a blanket or “class” privilege between journalists and their sources under the common law.

However, the Court held that a privilege for journalists and their secret sources could be found on a case-by-case basis under the common law of privilege. Noting that the public has an interest both in effective law enforcement and in being informed about matters of public importance that may depend on promises of confidentiality, the Court held that a privilege could be found where several criteria (known generally as the “Wigmore criteria”) were met:

1. where the communication was made explicitly in exchange for a promise of confidentiality;
2. where confidentiality was a pre-condition to the disclosure;
3. where the relationship between the journalist and the secret source must be sedulously fostered in the public good; and
4. where the public interest served by protecting the identity of the informant outweighs the public interest in getting at the truth.

Considering the facts of this case, the Court held that no privilege arose. The secret source attempted to dupe the National Post into publishing a document which, on its face, implicated a Prime Minister in a serious financial conflict of interest. The Post could not confirm the document’s authenticity and the police had reasonable grounds to believe that the document was a forgery. Therefore, the Court concluded, the National Post had failed to demonstrate that the fourth criterion was satisfied: the public interest in protecting the secret source in these circumstances did not outweigh the public interest in a criminal investigation. Accordingly, the appeal was dismissed.

Read the decision.