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The Supreme Court of Canada's October 22, 2010 decision in Globe and Mail v. Canada (Attorney General) (2010 SCC 4) prompted a flurry of responses (Omar Ha-Redeye's post at slaw (Wigmore Criteria Upheld for Journalistic Sources) is one of the best sources for a concise summation of the decision).  Available online are the factums of both the Globe and the Attorney-General of Canada.  

The decision is perhaps best seen as a companion decision to the R. v. National Post (2010 SCC 16) decision released earlier this year (earlier Signal coverage of the R v National Post decision can be found here).  The Court described the relationship between the two cases in the Globe and Mail decision:

[25] While this appeal raises issues similar to those addressed in National Post, the context is nevertheless different. This case involves civil litigation, not the criminal investigative process. It involves testimonial compulsion, and not the production of documents or other physical evidence. The parties’ dispute is subject to the laws of Quebec and the Quebec Charter. These factors must be considered in determining how, and to what extent, the majority reasons in National Post are equally applicable to the issues raised by this appeal.

The Court concluded that, while the contexts might be different, the applicable law was nevertheless the same: Canadian law does not recognize a class-based journalist-source privilege, nor does the Charter guarantee of press freedom entail such a privilege; that being said, there is a common law (and, in Quebec, civil law) basis for recognizing a case-by-case privilege - a privilege which is available in both civil litigation matters and criminal prosecutions, in both Canadian common law and civil law jurisdictions.  

The criteria to be met in order to shelter under the protection of the privilege are the following, derived from the academic writings of John Henry Wigmore (see paras. 22 and 53 of the Globe and Mail decision):

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
4. the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth

In effect, then, Globe and Mail confirms and extends R v National Post - and,

as I noted about the earlier decision

, perhaps the most significant element of the two decisions is that they confirm that the concept of "journalist" is now so amorphous and so incapable of being restrictively defined that the courts are adopting a case-by-case approach to assessing whether privilege will be accorded in a particular instance.

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Following up on last week's post about the Supreme Court of Canada's decision in R. v. National Post, 2010 SCC 16, Cris Best, writing at The Court.ca, has an in-depth analysis of the decision.

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On Friday, May 7, 2010, the Supreme Court of Canada issued its decision in R. v. National Post, 2010 SCC 16.  The decision is notable for its definition of the contours of a journalist's right to "shield" confidential sources and materials from the investigate powers of the state - from the headnote:

In appropriate circumstances, accordingly, the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor. The public’s interest in being informed about matters that might only be revealed by secret sources, however, is not absolute. It must be balanced against other important public interests, including the investigation of crime. In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence.

The decision has, as expected, generated an enormous amount of coverage and commentary.  From Kirk Makin writing in the Globe and Mail:

The Supreme Court of Canada slammed the door shut Friday on a concerted attempt by the press to broaden its rights to protect confidential sources.

In an 8-1 ruling, the court said that in an age of blogging, Twittering and long-range microphones, the media are too amorphous to enjoy such a right and too ungovernable to exercise it properly.

“The bottom line is that no journalist can give a source a total assurance of confidentially,” the majority said. “All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed.”

Mr. Justice Ian Binnie said it was a “simplistic proposition” to suggest that a journalist should be able to decide on his or her own whether to grant blanket immunity to a source.

To grant a right to administer blanket immunity to a trade that has no professional regulation and vastly differing ethical standards, “would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy,” the majority said.

From the National Post editorial about the decision:

Let us be clear about what was at issue in this case: Whether or not the loan-authorization document was a forgery, it is not disputed that Mr. McIntosh believed that X thought the document was genuine. Indeed, X had provided Mr. McIntosh with independently verifiable material in the past, and expressed a willingness to sign an affidavit confirming that s/he did not alter or forge the loan-authorization document.

This case thus goes to the very lifeblood of investigative journalism — the good-faith insider who comes forward with information that s/he believes casts important light on powerful individuals and institutions.

To their credit, every Supreme Court Justice responded to the facts of this case by recognizing that journalists do enjoy a case-by-case privilege that permits them to shield confidential materials from the police — thereby acknowledging that the free-speech freedoms contained in our Charter imply a freedom to report and gather information as well. This is an established principle in many Western jurisdictions, but it was the first time it been definitively articulated in this country.
Unfortunately, we learned, this privilege applies only in cases where journalists succeed in proving that “the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.”

From the Toronto Star report on the decision, by Tonda MacCharles:

In a landmark ruling, Canada’s highest court says journalists do not enjoy a constitutional right to shield the identity of sources during police investigations.

Yet, in a decision hailed by some media lawyers for recognizing the value of investigative journalism , the Supreme Court of Canada declared Friday sources may be shielded on a case-by-case basis.

The onus, however, is on a media outlet to prove the public interest in protecting a source outweighs the interest in investigating a crime.

Commentary from around the internet includes a thoughtful piece by Ravi M. Singh and from Sheldon Toplitt at The Unruly of Law.  Readers at Slaw parse the distinctions between bloggers, Twitterers and journalists.

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