Canada
Supreme Court rejects media immunity
Freedom of expression guarantees in the Charter of Rights do not extend to an absolute right for the media to protect confidential sources, the Supreme Court of Canada ruled Friday.
The court, in an 8-1 decision, ruled against the National Post and ordered it to turn over an allegedly forged document and the envelope used to send it to the newspaper in 2001.
News gathering techniques, such as the use of confidential sources, "may be important for journalists," noted Justice Ian Binnie, who wrote the majority decision. "But this is not to say that just because they are important that news gathering techniques as such are entrenched in the constitution," wrote Judge Binnie. "The bottom line is that no journalist can give a source a total assurance of confidentiality," he wrote.
The landmark case is the first time the Supreme Court had explicitly been asked to determine if the media had a "blanket right" to refuse to disclose information that could identify a confidential source.
The Supreme Court found that this right does not exist and the onus is on the media on a "case-by-case basis" to show why it would be exempt from a court order to disclose.
"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 is not absolute. It must be balanced against other important public interests, including the investigation of crime," wrote Judge Binnie.
The Supreme Court indicated that the legal test to be applied is the "Wigmore criteria," established nearly 90 years ago by the U.S. legal scholar John Henry Wigmore.
The National Post failed to meet the fourth criteria, which was that the law enforcement interest in obtaining the document, was greater than the public interest in protecting the identity of a source, said the majority.
The bank document at the centre of the case was sent by a confidential source to reporter Andrew McIntosh in April 2001. The document suggested a potential conflict of interest by Prime Minister Jean Chrétien over his support for a loan by the Business Development Bank of Canada, to a hotel in his riding.
Mr. Chretien and his lawyers stated that the document was a forgery. The National Post initially did not report on the allegations because of concerns over the authenticity of the document. Other news media though, reported on the contents of the document after the Bloc Québécois also received copies.
The RCMP obtained a court order in 2002 that required the National Post to turn over the document and the envelope. The police force wanted to conduct DNA tests as part of its investigation into the potential crime of "uttering a forged document."
A "hybrid offence" in the Criminal Code, it carries a maximum penalty of 10 years in prison if the Crown proceeds by indictment. If it prosecutes summarily, the maximum is six months in jail. Judge Binnie described the offence as a "serious" crime, in the majority decision.
In dissent, Justice Rosalie Abella disagreed with the majority's characterization of the offence and sided with the National Post. "Where as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgment and pause, it seems to me, before trespassing on the confidentiality which is the source of the relationship," wrote Judge Abella. "On one side of the balance we have the slightest possible benefit to an investigation of an alleged forgery, and on the other we have the far weightier injury to the press interests at stake," she added.
RCMP spokesman Corporal Luc Thibault said Friday that the "investigation is ongoing" into the distribution of the allegedly forged document. If investigators decide that it is necessary, "steps will be taken to obtain the document," said the officer. It was too soon though, to say if or when the RCMP will ask the National Post to turn over the document and envelope, explained Corp. Thibault.
(Published by National Post - May 7, 2010)