G. The Media: Sources and Access to Information

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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In practical terms, freedom of expression will often depend on the media. A number of cases require the Court to reconcile the media’s interests and freedom of expression with other competing values. In R v National Post,97the Court rejected the idea that freedom of expres-

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sion required protection for all secret sources of the traditional media or a class privilege for secret sources. It did, however, suggest that a privilege might be established on a case-by-case basis if maintaining a confidential relationship between the press and its sources was more important than the competing interest. In the case, which involved a search warrant that might reveal the identity of a secret source but also might reveal forged documents, the Court determined that the media had "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."98At the same time, the Court indicated that any warrant should impose conditions such as sealing orders that protected freedom of expression though it rejected a dissenting judgment that the media should presumptively receive notice prior to a search. It is possible that media interests will be preferred in some cases where the state’s competing interest is tenuous, but "the bottom line is that no journalist can give a source a total assurance of confidentiality. All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed."99The media and others may want to argue that freedom of expression requires access to certain public documents. The Supreme Court has, however, been cautious in interpreting freedom of expression to require access to information possessed by the government. It has held that freedom of expression "does not guarantee access to all documents in government hands. Access to documents in government hands is constitutionally protected only where it is shown to be a necessary precondition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned."100The Court elaborated that, under Irwin Toy, to "show that access would further the purposes of s 2(b), the claimant must establish that access is necessary for the meaningful exercise of free expression on matters of public or political interest."101In this case, the Court concluded that...

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