R v National Post – Case-by-case Privilege for Journalists and Confidential Sources

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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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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