INTRODUCTION I. INTERPRETING THE CHARTER'S PRESS GUARANTEE i. "Or of the Press" and the American "Speech-Press" Debate ii. Groundwork for a Charter-Specific Interpretation of the Press Guarantee: Lessard and 'Newsgathering' iii. Protecting Practices: A Canadian Alternative to the "Institutional" Model of Press Freedom II. THE CASE FOR JOURNALIST-SOURCE PRIVILEGE UNDER SECTION 2(B) i. National Post and the Governing "Wigmore" Approach to Journalist-Source Privilege ii. National Post's American Precedent: Branzburg v Hayes iii. The Mistakes of National Post: Why the Charter Must Protect Journalist-Source Relationships III. A CHARTER-BASED JOURNALIST-SOURCE PRIVILEGE TEST i. The American Jurisprudence ii. The Perils of "Balancing": Is a Statutory Solution Preferable? iii. A Proposed Charter-based Test for Asserting Journalist-Source Privilege IV. CONCLUSION INTRODUCTION
"It is not necessarily better to write about crime than to do something about it," wrote--rather ungenerously--two justices of the Ontario Court of Appeal in 2008's R v National Post, (1) a case centring on the hotly-contested issue of whether reporters may claim a privilege over the names of their confidential sources. The justices were paraphrasing the remarks of Justice White in Branzburg v Hayes, (2) the US Supreme Court's landmark, albeit perplexing, 1972 ruling that saw the Court narrowly reject such a privilege. Though Branzburg dealt with contempt citations, and National Post (Ont CA) dealt with search warrants, both cases raised the same fundamental question: could a reporter's promise of confidentiality--essential to the "watchdog" function of a post-Watergate press--be permitted to legitimately trump the justice system's interest in 'every man's evidence'? For the Court of the Appeal, the answer in National Post (Ont CA) was a resounding no--a view shared by a majority of the Supreme Court in its now-leading 2010 decision on the case. (3) While Canada's highest court left the door open for a successful case-by-case Wigmore test-based assertion of privilege--one which would arrive later that year in Globe and Mail v Canada (4)--it denied reporters' confidentiality agreements any constitutional protection under section 2(b) of the Canadian Charter of Rights and Freedoms, (5) heeding many of Justice White's concerns. While not a complete defeat for the media, the decision was yet another in recent judicial history where the Court found it apt to situate press rights outside of the ambit of the Charter (6)--aided, perhaps, by a dose of scepticism about the fourth estate's public-interest claims.
This article explores the Court's circumscribed section 2(b) analysis vis-a-vis the press in National Post and other media-pertinent cases and presents an alternative, "constitutionalized" approach to adjudicating journalist-source privilege claims in the future. Part I suggests that a purposive and contextual reading of section 2(b) of the Charter requires that the press guarantee mean something more than journalists possessing, in their newsgathering capacities, the same expressive rights they enjoy as individuals. Specifically, Part I suggests that section 2(b) must protect the most basic and essential of information-gathering practices--some of which may fall at the edges of, or may only incidentally touch upon, 'expression'. This approach avoids the pitfalls of interpreting the press right as protecting a profession or an institution--an approach incompatible with the plain wording (and, perhaps, the democratic or individualist spirit) of the Charter, which grants its fundamental freedoms to "[e]veryone." (7) Part II, by dissecting the Court's errors in National Post, situates the use of confidential journalist-source relationships within this interpretive framework. Part II shows how those relationships are indispensable to uncovering information central to the public evaluation of social and political decision-making, drawing a nexus between source-protection and the 'core values' section 2(b) was designed to advance, as outlined in Irwin Toy. (8) Finally, Part III develops a "constitutionalized" test for adjudicating claims of journalist-source privilege in practice. The test addresses courts concerns for a balance between society's need for 'every man's evidence' and their concern "not that everyone shall speak, but that everything worth saying shall be said." (9) In the Canadian context, a true balance is unlikely to prevail without courts revisiting, and reappraising, the contours of a hitherto under-defined guarantee to "freedom of the press" under section 2(b) of the Charter.
INTERPRETING THE CHARTER'S PRESS GUARANTEE
Canadian courts have taken a largely ad hoc approach to assessing exactly what--if anything--"freedom of the press" means when juxtaposed against its historical sibling, "freedom of expression." In some media cases, the distinction appears to come down to linguistic preference: in Edmonton Journal v Alberta (Attorney General), which concerned the constitutionality of a publication ban on matrimonial proceedings, Justice Cory, in his majority opinion, refers to the interfered-with freedom as "expression", (10) while Wilson J, in her concurring opinion, chooses "press." (11) Likewise, in other decisions, a single justice will use the terms interchangeably; implying some degree of functional equivalency between them. For instance, in National Post, Binnie J notes that both "freedom of the press" (12) and crime-investigation are vital in a society based on the rule of law, (13) but then characterizes the freedom-at-stake by noting that "freedom of expression protects readers and listeners as well as writers and speakers." (14) Yet another approach seems apparent in Abella J's reasons in Grant v Torstar Corp, where she notes that the Court's new 'responsible communication' libel analysis requires "balancing freedom of expression, freedom of the press, the protection of reputation, privacy concerns, and the public interest" (15)--language hinting at the possibility that the two freedoms might either conflict or not always entail the same considerations.
While it has not been 'mined' in the Canadian context, the issue of whether the included press and expression guarantees are at root equivalent, or whether they, instead, carry functionally independent meanings, is not new. Since an onslaught of media cases arrived in the country's courts in the mid-20th century, judges and legal academics in the United States have struggled to resolve the precise purpose of the press clause in their First Amendment, which, similar to Canada's guarantee, lists the speech and press guarantees together without providing a clear indication of either's intended meaning. (16) While American courts have failed to resolve a coherent vision of their guarantee, Canadian courts can draw much from their attention to the historical basis for the right--a basis not restricted to the American experience--as well as to the lively debate about its proper scope and character that has, so far, been absent from Canada's constitutional odyssey.
i. "Or of the Press" and the American "Speech-Press" Debate
The First Amendment of the US Constitution provides that "Congress shall make no law ... abridging the freedom of speech, or of the press...." (17) As in the Canadian context, the Supreme Court of the United States has largely treated the speech and press clauses as interchangeable. (18) However, in November 1974, Justice Potter Stewart delivered a speech at Yale Law School suggesting a now-influential alternative interpretation of the press clause. (19) Noting the press's growing role in the social changes around him--not least in President Richard Nixon's resignation following the Watergate scandal that summer--he also observed an evolving approach to media cases belying the simple reduction of press rights to speech rights. In 1964, New York Times Co v Sullivan (20) revolutionized US libel law by immunizing from suit those accused of libelling public figures, absent a (relatively demanding) finding of malice. Likewise, in 1971, the Court declined to restrain the New York Times' publication of the Pentagon Papers. (21) Finally, in 1972's Branzburg v Hayes (22) the Court had also been called upon to decide whether a First Amendment privilege existed in respect of the identities of journalists' confidential sources--an idea it had rejected, but only by a divided vote (on which Justice Stewart himself dissented) that left the law in a state of ambiguity. (23) Reflecting on this torrent of change in media law, Stewart J said:
It seems to me that the Court's approach to all these cases has uniformly reflected its understanding that the Free Press guarantee is, in essence, a structural provision of the Constitution. Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals: freedom of speech, freedom of worship, the right to counsel, the privilege against compulsory self-incrimination, to name a few. In contrast, the Free Press Clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection. ... It is tempting to suggest that freedom of the press means only that newspaper publishers are guaranteed freedom of expression. They are guaranteed that freedom, to be sure, but so are we all, because of the Free Speech Clause. If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy. (24) Justice Stewart went further. Rejecting the idea that the clause's sole purpose was to insure that the newspaper would serve as a "'marketplace of ideas,' a kind of Hyde Park corner for the community", (25) he theorized that the guarantee served a distinct purpose in the American founders' vision of a system of checks and balances frustrating the concentration of state...