R. v. National Post et al., (2010) 262 O.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 22, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 262 O.A.C. 1 (SCC);2010 SCC 16;401 NR 104;[2010] 1 SCR 477;262 OAC 1

R. v. Nat. Post (2010), 262 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] O.A.C. TBEd. MY.047

National Post, Matthew Fraser and Andrew McIntosh (appellants) v. Her Majesty The Queen (respondent) - and - Attorney General of Canada, Attorney General of New Brunswick, Attorney General of Alberta, Bell GlobeMedia Inc., Canadian Broadcasting Corp., British Columbia Civil Liberties Association, Canadian Civil Liberties Association, and Canadian Newspaper Association, AD IDEM/Canadian Media Lawyers Association, Canadian Journalists for Free Expression, Canadian Association of Journalists, Professional Writers Association of Canada, RTNDA Canada/Association of Electronic Journalists, Magazines Canada, Canadian Publishers' Council, Book and Periodical Council, Writers' Union of Canada and Pen Canada ("Media Coalition") (intervenors)

(32601; 2010 SCC 16; 2010 CSC 16)

Indexed As: R. v. National Post et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

May 7, 2010.

Summary:

A confidential source sent a National Post reporter a document that appeared to be a copy of a Business Development Bank of Canada (BDBC) loan authorization for a hotel in then Prime Minister Chrétien's home riding. If genuine, the document could indicate that Chrétien had a conflict of interest in relation to the loan. BDBC officials claimed that the document was a forgery and complained to the police. The police obtained a search warrant and assistance order requiring the National Post to produce the document and the envelope in which it was sent, so that they could conduct forensic tests that might identify the sender. The National Post et al. sought judicial review.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 50, allowed the application. The Crown appealed. The National Post et al. cross-appealed, claiming that the reviewing judge erred in dismissing their request for costs.

The Ontario Court of Appeal, in a decision reported at 234 O.A.C. 101, allowed the appeal, making the cross-appeal moot. The National Post et al. appealed.

The Supreme Court of Canada, Abella, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - The Supreme Court of Canada held that what was protected by s. 2(b) of the Canadian Charter of Rights and Freedoms was freedom of expression - The court rejected the argument that protection of confidential sources should be treated as if it were an enumerated Charter right or freedom - Accordingly, a judicial order to compel disclosure of a secret source would not in general violate s. 2(b) - See paragraphs 37 to 41.

Civil Rights - Topic 2403

Freedom of the press - General principles - Scope of freedom of the press - The Supreme Court of Canada discussed the balancing of the public interest in freedom of the media with the public interest in law enforcement - The court stated that "... the law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests - including criminal investigations. In those circumstances the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised." - See paragraphs 28 to 34.

Civil Rights - Topic 2403

Freedom of the press - General principles - Scope of freedom of the press - A confidential source sent a National Post reporter (McIntosh) a document that appeared to be a copy of a Business Development Bank of Canada (BDBC) loan authorization for a hotel in then Prime Minister Chrétien's home riding - If genuine, the document could indicate that Chrétien had a conflict of interest in relation to the loan - BDBC officials claimed that the document was a forgery and complained to the police - The police obtained a search warrant and assistance order requiring the National Post to produce the document and the envelope in which it was sent, so that they could conduct forensic tests that might identify the sender - The Supreme Court of Canada held that the public interest required disclosure - The document and the envelope were not merely pieces of evidence tending to show that a crime had been committed - They were the very actus reus or corpus delicti of the alleged crime - In such circumstances the identity of the individual who shipped McIntosh the forged document had no continuing claim to the protection of the law - See paragraphs 70 to 77.

Civil Rights - Topic 2403

Freedom of the press - General principles - Scope of freedom of the press - [See Civil Rights - Topic 1803 , first Evidence - Topic 4107.1 and all Evidence - Topic 4191 ].

Civil Rights - Topic 2446

Freedom of the press - Lawful abridgement of - Search warrants, assistance orders or production orders - A confidential source sent a National Post reporter (McIntosh) a document that appeared to be a copy of a Business Development Bank of Canada (BDBC) loan authorization for a hotel in then Prime Minister Chrétien's home riding - If genuine, the document could indicate that Chrétien had a conflict of interest in relation to the loan - BDBC officials claimed that the document was a forgery and complained to the police - The police obtained a search warrant and assistance order requiring the National Post to produce the document and the envelope in which it was sent, so that they could conduct forensic tests that might identify the sender - The Supreme Court of Canada stated that "The appellants [National Post et al.] strongly object to the issuance of an assistance order that directed the editor-in-chief of the National Post 'to take such steps as are necessary' to give effect to the search warrant ... . On the evidence before Khawly J. [the issuing judge], both Mr. McIntosh and other representatives of the National Post had made statements suggesting that while the items described in the search warrant had been deliberately hidden they were within the control of the National Post. ... Correspondence from counsel for the National Post treated the protection of the source's confidentiality as a National Post issue not just a McIntosh issue ... . Given the concerted action between Mr. McIntosh and his editor-in-chief, it was entirely reasonable for the issuing judge to enlist the assistance of the editor-in-chief in locating and producing the concealed document." - See paragraph 90.

Criminal Law - Topic 3060

Special powers - Search warrants - Assistance orders - [See Civil Rights - Topic 2446 ].

Criminal Law - Topic 3094

Special powers - Issue of search warrants - Jurisdiction - A confidential source sent a National Post reporter a document that appeared to be a copy of a Business Development Bank of Canada (BDBC) loan authorization for a hotel in then Prime Minister Chrétien's home riding - If genuine, the document could indicate that Chrétien had a conflict of interest in relation to the loan - BDBC officials claimed that the document was a forgery and complained to the police - The police obtained a search warrant and assistance order requiring the National Post to produce the document and the envelope in which it was sent, so that they could conduct forensic tests that might identify the sender - The Ontario Court of Appeal held that a reviewing judge erred in holding that the issuing judge (Khawly, J.) made a jurisdictional error by proceeding without notice to the National Post - The search warrant and assistance order fully recognized the rights of the National Post et al. because they ensured that, if the National Post et al. requested, the items would not be disclosed until the validity of the search warrant and assistance order was determined on judicial review - The Supreme Court of Canada agreed that the ex parte nature of Khawly, J.'s, order was not a ground for setting aside the warrant - Khawly, J., gave no reasons for proceeding ex parte, but his order fully protected National Post et al.'s position and they did not demonstrate any prejudice on that account - Further, his order set out conditions governing the search and National Post et al. did not establish any deficiency in the procedure laid out in the order - See paragraphs 78 to 88.

Criminal Law - Topic 3107

Special powers - Issue of search warrants - Procedure - [See Criminal Law - Topic 3094 ].

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - A confidential source sent a National Post reporter a document that appeared to be a copy of a Business Development Bank of Canada (BDBC) loan authorization for a hotel in then Prime Minister Chrétien's home riding - If genuine, the document could indicate that Chrétien had a conflict of interest in relation to the loan - BDBC officials claimed that the document was a forgery and complained to the police - The police obtained a search warrant and assistance order requiring the National Post to produce the document and the envelope in which it was sent, so that they could conduct forensic tests that might identify the sender - The Supreme Court of Canada concluded that "in the facts of this case the appellants [National Post et al.] have not established that the public interest in the protection of their secret source(s) outweighs the public interest in the production of the physical evidence of the alleged crimes. For this reason, and also because the warrant as issued was entirely respectful of the special position of the media, I conclude that the warrant and assistance order were properly issued and must be complied with even if the result is to disclose the identity of the 'secret source' who, on the evidence, 'uttered' a forged document." - See paragraph 91.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - [See second Civil Rights - Topic 2403 ].

Evidence - Topic 4191

Witnesses - Privilege - Communications to news media - General - The Supreme Court of Canada rejected a class-privilege for journalistic-confidential (or secret) source privilege - See paragraphs 42 to 49.

Evidence - Topic 4191

Witnesses - Privilege - Communications to news media - General - The Supreme Court of Canada approved a case-by-case model for journalistic-confidential (or secret) source privilege - The court stated that the privilege "if established on the facts, will not necessarily be restricted to testimony, i.e. available only at the time that testimony is sought from a journalist in court or before an administrative tribunal. The protection offered may go beyond a mere rule of evidence. Its scope is shaped by the public interest that calls the privilege into existence in the first place. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant ... The scope of the case-by-case privilege will depend, as does its very existence, on a case-by-case analysis, and may be total or partial ..." - See paragraph 52.

Evidence - Topic 4191

Witnesses - Privilege - Communications to news media - General - The Supreme Court of Canada approved a case-by-case model for journalistic-confidential (or secret) source privilege - The court adopted the "Wigmore criteria" which "consist of four elements which may be expressed for present purposes as follows. First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be 'sedulously fostered' in the public good ... . Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth." - See paragraph 54.

Evidence - Topic 4191

Witnesses - Privilege - Communications to news media - General - The Supreme Court of Canada applied the four "Wigmore criteria" in determining whether a claim of journalistic-confidential (or secret) source privilege should be upheld in an individual case - The fourth criterion was "whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth" - The court stated that "at the fourth stage, the court will weigh up the evidence on both sides (supplemented by judicial notice, common sense, good judgment and appropriate regard for the 'special position of the media'). The public interest in free expression will always weigh heavily in the balance. While confidential sources are not constitutionally protected, their role is closely aligned with the role of 'the freedom of the press and other media of communication', and will be valued accordingly but, to repeat, at the end of the analysis the risk of non-persuasion rests at all four steps on the claimant of the privilege. At this point it is important to remind ourselves that there is a significant difference between testimonial immunity against compelled disclosure of secret sources and the suppression by the media of relevant physical evidence." - See paragraphs 64 and 65.

Cases Noticed:

St. Elizabeth Home Society v. Hamilton (City) et al. (2008), 237 O.A.C. 25; 230 C.C.C.(3d) 199; 2008 ONCA 182, refd to. [paras. 30, 118].

Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres, [1991] 3 S.C.R. 421; 130 N.R. 321; 43 Q.A.C. 161, refd to. [paras. 31, 146].

Canadian Broadcasting Corp. v. Lessard - see Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres.

Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et al., [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271, refd to. [paras. 32, 146].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 37].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 39].

Grant et al. v. Torstar et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [paras. 40, 118].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 42].

R. v. Gruenke - see R. v. Fosty and Gruenke.

Moysa v. Labour Relations Board (Alta.) et al., [1989] 1 S.C.R. 1572; 96 N.R. 70; 97 A.R. 368, refd to. [paras. 43, 107].

Ashworth Hospital Authority v. MGN Ltd., [2002] UKHL 29; [2002] 1 W.L.R. 2033, refd to. [paras. 47, 113].

McGuinness v. Victoria (Attorney General) (1940), 63 C.L.R. 73 (Aust. H.C.), refd to. [para. 47].

Fairfax (John) & Sons Ltd. v. Cojuangco (1988), 165 C.L.R. 346 (Aust. H.C.), refd to. [para. 47].

Branzburg v. Hayes (1972), 408 U.S. 665, refd to. [paras. 47, 108].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [paras. 50, 115].

Slavutych v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, refd to. [paras. 50, 115].

Slavutych v. Baker - see Slavutych v. University of Alberta.

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 50].

O'Neill v. Canada (Attorney General), [2006] O.T.C. 998; 213 C.C.C.(3d) 389 (Sup. Ct.), refd to. [paras. 52, 140].

R. v. Murray (K.), [2000] O.T.C. 275; 144 C.C.C.(3d) 289 (Sup. Ct.), refd to. [paras. 65, 141].

Financial Times Ltd. v. United Kingdom, [2009] ECHR 2065, refd to. [paras. 66, 123].

Financial Times Ltd. v. Interbrew, [2002] EWCA Civ. 274, refd to. [para. 66].

Goodwin v. United Kingdom, 1996-II ECHR, refd to. [paras. 66, 113].

Pacific Press Ltd. v. R. (1977), 37 C.C.C.(2d) 487 (B.C.S.C.), refd to. [paras. 66, 148].

John v. Express Newspapers, [2000] 3 All E.R. 257 (C.A.), refd to. [paras. 66, 120].

Sanoma Uitgevers B.V. v. Netherlands (2009), ECHR No. 38224/03, refd to. [para. 67].

In re Grand Jury Subpoena, Judith Miller (2005), 397 F.3d 964 (D.C. Cir.), refd to. [paras. 69, 111].

R. v. Canadian Broadcasting Corp. et al. (2001), 142 O.A.C. 1; 52 O.R.(3d) 757 (C.A.), leave to appeal dismissed [2001] 2 S.C.R. vii; 276 N.R. 398; 154 O.A.C. 199, refd to. [para. 81].

R. v. Serendip Physiotherapy Clinic et al. (2004), 192 O.A.C. 71; 73 O.R.(3d) 241 (C.A.), refd to. [para. 82].

Descoteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 87].

New York Times Co. v. Gonzales (2006), 459 F.3d 160 (2nd Cir.), refd to. [para. 111].

X Ltd. v. Morgan Grampian (Publishers) Ltd. et al., [1991] 1 A.C. 1; 110 N.R. 367 (H.L.), refd to. [para. 113].

Reynolds v. Times Newspapers Ltd. et al., [2001] 2 A.C. 127; 250 N.R. 1 (H.L.), refd to. [para. 120].

Ernst v. Belgium (2004), 39 E.H.R.R. 724, refd to. [para. 120].

Voskuil v. Netherland (2007), 24 B.H.R.C. 306 (E.C.H.R.), refd to. [para. 120].

Prosecutor v. Brdjanin and Talic (2002), ICTY No. IT-99-36-AF73.9, refd to. [para. 120].

British Steel Corp. v. Granada Television Ltd., [1981] 1 All E.R. 417 (H.L.), refd to. [para. 122].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 138].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 138].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 138].

Authors and Works Noticed:

Abramowicz, David, Calculating the Public Interest in Protecting Journalists' Confidential Sources (2008), 108 Colum. L. Rev. 1949, pp. 1966 to 1970 [para. 124].

Article 19 and Interights, Briefing Paper on Protection of Journalists' Sources: Freedom of Expression Litigation Project, May 1998 (online: www.article19.org/pdfs/ publications/ right-to-protect-sources.pdf), generally [para. 119].

Bartlett, Peter, Australia, in Glasser Jr., Charles J., International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters and Lawyers (2nd Ed. 2009), p. 77 [paras. 113, 120].

Brabyn, Janice, Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers' Confidential Sources in Common Law Jurisdictions (2006), 69 Modern L. Rev. 895, pp. 925 to 927 [para. 113].

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), paras. 14.19 ff. [para. 53].

Canadian Association of Journalists, Guidelines of Investigative Journalism (2004) (online: http://www.eagle.ca/caj/principles/ principles-statement-investigative-2004.htm), generally [para. 30].

Editorial, Shielding a Basic Freedom, New York Times (September 12, 2005), p. A20 [para. 29].

Freedman, Eric M., Reconstructing Journalists' Privilege (2008), 29 Cardozo L. Rev. 1381, pp. 1384, 1385 [para. 111].

Glasser Jr., Charles J., International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters and Lawyers (2nd Ed. 2009), p. 77 [paras. 113, 120].

Gora, Joel M., The Source of the Problem of Sources: The First Amendment Fails the Fourth Estate (2008), 29 Cardozo L. Rev. 1399, pp. 1405 [para. 111]; 1420, 1421 [para. 141].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (3rd Ed. 2002), pp. 163 to 167 [para. 53].

United States, Congressional Research Service, CRS Report for Congress, Journalists' Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes (June 27, 2007), pp. CRS-1, CRS-2 [para. 119].

Wigmore, John Henry, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd Ed. 1923), vol. 5, § 2286, fn. 7 [para. 54].

Wigmore, John Henry, Evidence in Trials at Common Law (3rd Ed. McNaughton Rev. 1961), vol. 8, § 2285 [paras. 53, 115, footnote 1].

Youm, Kyu Ho, International and Comparative Law on the Journalist's Privilege: The Randal Case as a Lesson for the American Press (2006), 1 J. Int'l Media & Ent. L. 1, generally [para. 119].

Counsel:

Marlys A. Edwardh, John Norris and Jessica Orkin, for the appellants;

Robert Hubbard and Susan Magotiaux, for the respondent;

Cheryl J. Tobias, Q.C., Jeffrey G. Johnston and Robert J. Frater, for the intervenor, the Attorney General of Canada;

Written submissions only by Gaétan Migneault, for the intervenor, the Attorney General of New Brunswick;

Jolaine Antonio, for the intervenor, the Attorney General of Alberta;

Peter M. Jacobsen and Tae Mee Park, for the intervenor, Bell GlobeMedia Inc.;

Daniel J. Henry, for the intervenor, the Canadian Broadcasting Corporation;

Tim Dickson, for the intervenor, the British Columbia Civil Liberties Association;

Jamie Cameron and Matthew Milne-Smith, for the intervenor, the Canadian Civil Liberties Association;

Brian MacLeod Rogers and Iain A.C. MacKinnon, for the intervenors, the Canadian Newspaper Association, AD IDEM/ Canadian Media Lawyers Association, Canadian Journalists for Free Expression, the Canadian Association of Journalists, the Professional Writers Association of Canada, RTNDA Canada/Association of Electronic Journalists, Magazines Canada, the Canadian Publishers' Council, the Book and Periodical Council, the Writers' Union of Canada and Pen Canada.

Solicitors of Record:

Marlys Edwardh Barristers Professional Corporation, Toronto, Ontario, for the appellants;

Crown Law Office - Criminal, Toronto, Ontario, for the respondent;

Department of Justice, Vancouver, B.C., for the intervenor, the Attorney General of Canada;

Office of the Attorney General, Fredericton, N.B., for the intervenor, the Attorney General of New Brunswick;

Alberta Justice, Calgary, Alberta, for the intervenor, the Attorney General of Alberta;

Bersenas Jacobsen Chouest Thomson Blackburn, Toronto, Ontario, for the intervenor, Bell GlobeMedia Inc.;

Canadian Broadcasting Corporation, Toronto, Ontario, for the intervenor, the Canadian Broadcasting Corporation;

Farris, Vaughan, Wills & Murphy, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association;

Osgoode Hall Law School of York University, North York; Ontario, Davies Ward Phillips & Vineberg, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Brian MacLeod Rogers, Toronto, Ontario, for the intervenor, the Canadian Newspaper Association, AD IDEM/Canadian Media Lawyers Association, Canadian Journalists for Free Expression, the Canadian Association of Journalists and the Professional Writers Association of Canada, RTNDA Canada/Association of Electronic Journalists, Magazines Canada, the Canadian Publishers' Council, the Book and Periodical Council, the Writers' Union of Canada and Pen Canada.

This appeal was heard on May 22, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The court delivered the following reasons for judgment, in both official languages, on May 7, 2010, including the following opinions:

Binnie, J. (McLachlin, C.J.C., Deschamps, Fish, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 92;

LeBel, J., concurring in part - see paragraphs 93 to 97;

Abella, J., dissenting - see paragraphs 98 to 159.