Police criminal investigation outweighs confidential press privilege in Chrétien affair

Auberge Grand-Mère subject of 10 year old Chretien scandal photo: Monquebec.net

The Supreme Court of Canada has ruled that the National Post must turn over evidence it received from their journalist’s confidential source in the “Grand Mere Affair.”

The Supreme Court ruled that any privilege is not constitutional and must be balanced by the need to investigate criminal activity.

“…evidence sought to be obtained measured against the public interest in respecting the journalist’s promise of confidentiality…Therefore, no journalist can give a secret source an absolute assurance of confidentiality.” Supreme Court of Canada

The case had 16 interveners including CBC, Bell Globe Media, two provinces and the Federal government, civil liberties and various journalist associations.  

The decade old story had a reporter receiving certain BDC bank loan documents that implicated Prime Minister Chrétien in an influence peddling scandal. The documents were in an envelope which the National Post reporter saved,  promising they would remain confidential.

The BDC said the documents were forged and asked the RCMP to investigate. The RCMP got a search warrant to seize the documents and envelope looking for, among other things, DNA and fingerprint evidence.

The National Post claimed the documents should not be seized under journalist privilege to protect confidential sources. There is no constitutional or statutory authority for journalist’s privilege in Canada. Even in the US which has stronger constitutional safeguards for reporters, the courts have thrown journalists in jail for failure to reveal sources.

National Post, Matthew Fraser and Andrew McIntosh v The Queen SCC was an appeal of the search warrant for the documents and envelope. The appeal was denied and the crown has the right to the documents unhindered by the promise of confidentiality by reporter Matthew Fraser.

Constitutional rights in Canada are rarely absolute like the US “right to bear arms.” Canada’s Supreme Court tries to balance the public good with the rights of the government to peace and good government.

In this case the allegations of fraud against a former Prime Minister were serious charges. The belief by the BDC as the banker that the evidence was tampered with was even more serious. The public has a right to know what the journalist reported but the state has the right to investigate criminal activity.

Supreme Court

“Freedom to publish the news necessarily involves a freedom to gather the news, but each of the many important news gathering techniques, including reliance on secret sources, should not itself be regarded as entrenched in the Constitution,” said the Supreme Court. “The protection attaching to freedom of expression is not limited to the “mainstream media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest. To throw a constitutional immunity around the interactions of such a heterogeneous and ill‑defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality…would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy. The law needs to provide solid protection against the compelled disclosure of secret sources in appropriate situations, but the history of journalism in this country shows that the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source in accordance with the principles of common law privilege would not in general violate s. 2(b).”

“Although the common law does not recognize a class privilege protecting journalists from compelled disclosure of secret sources, a journalist’s claim for protection of secret sources can be assessed properly using the case‑by‑case model of privilege. The Wigmore criteria provide a workable structure within which to assess, in light of society’s evolving values, the sometimes‑competing interests of free expression and the administration of justice and other values that promote the public interest. This will provide the necessary flexibility and an opportunity for growth that is essential to the proper function of the common law.”

“A promise of confidentiality will be respected if: (1) the communication originates in a confidence that the identity of the informant will not be disclosed; (2) the confidence is essential to the relationship in which the communication arises; (3) the relationship is one which should be sedulously fostered in the public good; (4) and the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. (numerals added) This approach properly reflects Charter values and balances the competing public interests in a context‑specific manner.”

“The media party asking the court to uphold a promise of confidentiality must prove all four criteria and no burden of proof shifts to the Crown. This includes, under the fourth criterion, proving that the public interest in protecting a secret source outweighs the public interest in a criminal investigation. The weighing up under this criterion will also include the nature and seriousness of the offence under investigation, and the probative value of the evidence sought to be obtained measured against the public interest in respecting the journalist’s promise of confidentiality…Therefore, no journalist can give a secret source an absolute assurance of confidentiality.”

“The media’s ss. 2(b) and 8 Charter interests are clearly implicated when the police seek to seize documents in their possession. Even where no privilege is found to exist, warrants and assistance orders against the media must take into account their “special position” and be reasonable in the “totality of circumstances”.”

Civil liberties groups upset

“We all rely on that relationship to get the news and issues of great national importance, such as this one,” said Tim Dickson, who acted as counsel for the BC Civil Liberties Association.

“It’s because of the willingness of confidential sources to come forward. But they only come forward because they’re promised confidentiality.”

It’s disappointing to see the country’s highest court miss a chance to “set a high bar” for journalist-source relationships, Dickson added.

“That relationship is so important to freedom of the press, and having the news be brought out to the public.” CBC News

For a backgrounder, see L’Affair Grand-Mere, CBC