Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Ontario's Court of Appeal Unanimously Rules that the National Post Newspaper Must Hand Over Documents Provided by a Source

On February 29, 2008, the Ontario Court of Appeal overturned a decision of a provincial judge who quashed a search warrant obtained by the Royal Canadian Mounted Police (RCMP) to obtain an envelop that had been used to deliver a document to a reporter of Canada's National Post newspaper by a confidential source. This decision will undoubtedly send shock waves inside and outside Canada.  In Canada, we may not have to wait so long to find out the identify of a "deep throat" source. 

The background facts are intriguing:

  • Andrew McIntosh is an award-winning investigative journalist who was employed by the National Post from August 1998 until February 2005. 
  • One of his first story ideas at the National Post concerned Prime Minister Jean Chrétien’s investment in the Grand-Mère Golf Club located in Mr. Chrétien’s home riding of St. Maurice, <st1:state w:st="on"> Quebec.  </st1:state>
  • <st1:state w:st="on">During his investigation, McIntosh also became interested in Mr. Chrétien’s involvement with a 1997 BDBC loan to the Auberge Grand-Mère, a hotel located next to the golf club, and with other federal grants in the riding."</st1:state>
  •  McIntosh’s initial stories on these subjects were published in January 1999, which t prompted various people to contact McIntosh. 
  • Some of those people became confidential sources of information for him.
  • McIntosh made promises of confidentiality to these sources as he deemed necessary.  
  • A source was unwilling to provide McIntosh with information at that time, even on a confidential basis.
  • McIntosh gave the undertaking and subsequently received documents and information, including what appeared to be copies of original documents from BDBC files.
  • On April 5, 2001, McIntosh received a sealed plain brown envelope addressed to him from an anonymous sender in the daily mail delivery at the Ottawa Bureau of the National Post.  The envelope contained a document that appeared to be a copy of a BDBC internal loan authorization for a $615,000 mortgage to Les Entreprises Yvon Duhaime Inc. (Auberge Grand-Mère) in August 1997.
  • McIntosh realized that if the document were genuine, it could be proof of a serious conflict of interest on the part of Mr. Chrétien.
  • The BDBC, the Prime Minister’s office, and David Scott, counsel to the Prime Minister claimed that the document was a forgery.
  • The BDBC complained to the RCMP about what it alleged was a forged document.
  • The RCMP started an criminal investigation.
  • During the course of the criminal investigation, the RCMP applied for a ex parte search warrant and assistance order to obtain the envelop and document to conduct fingerprint and/or DNA analysis to identify the source.
  • After being served with the search warrant and assistance order, the respondents applied for a certiorari order to quash them and for a similar order under ss. 2(b) and 24(1) of the Charter
  • On August 6, 2002, the respondents obtained a consent order staying the execution of the search warrant and assistance order until their validity was finally determined in the Superior Court.

The Ontario Court of Appeal held that:

 "The journalist-confidential source relationship is not protected by a class privilege.  However, in R. v. McClure (2001), 151 C.C.C. (3d) 321 at para. 29, the Supreme Court said that the confidentiality of the relationship between a journalist and the journalist’s source may be protected on a case-by-case basis.  Whether the privilege will be recognized in a given case must be determined by applying the four Wigmore criteria.  These criteria are:

 (i)       The communications must originate in a    confidence that they will not be disclosed;

(ii)       This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;

(iii)           The relationship must be one which in the opinion of the community ought to be “sedulously fostered”; and

(iv)            The injury to the relationship from the disclosure of the communications must be greater than the benefit gained from the correct disposal of the litigation."

The Court of Appeal stated:

"We ... accept ... that the gathering and dissemination of news and information without undue state interference is an integral component of the respondents’ constitutional right of freedom of the press ... However, this does not mean that press organizations or journalists are immune from valid searches under s. 8 of the Charter.  And s. 2(b) does not guarantee that journalists have an automatic right to protect the confidentiality of their sources.  The court must ensure that the privacy interests of the press are limited as little as possible.  But the court must also balance against the privacy interest of the press the state or other societal interests in getting at the truth."

The Court of Appeal determined that the police interest in the criminal investigation outweighed the right of the press to protect confidential sources.

The decision was written my Mr. Justice John Laskin, an incredible legal mind in Canada.  The National Post will have 30 days to decide whether to file an appeal with the Supreme Court of Canada.

To read the entire Ontario Court of Appeal decision, Please click on the following link  - http://www.ontariocourts.on.ca/decisions/2008/february/2008ONCA0139.pdf

Please click on the following link to read the National Post's article "Reporters do not have 'automatic right' to protect sources: ruling" which discusses the outcome of the case - http://www.nationalpost.com/news/story.html?id=344243

 

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