Commercial Litigation and Dispute Resolution Blog

The use of confidential sources by journalists – a topic first sensationalized when Washington Post reporters Bob Woodward and Carl Bernstein broke the Watergate scandal – has remained a vexed issue for courts and legislatures ever since.  In R. v. National Post, 2010 SCC 16, the Supreme Court of Canada recently ruled against a constitutional right to protect confidential sources, finding that it did not form part of the guarantee of freedom of the press under section 2(b) of the Canadian Charter of Rights and Freedoms.

Unlike most cases involving confidential sources, the battle in National Post concerned the production of a piece of physical evidence: a Business Development Bank of Canada document, apparently forged, that purported to show that Prime Minister Jean Chretien had acted in a serious conflict of interest. When McIntosh and the Post refused the police’s request to turn over the document and its envelope, the police sought and obtained a search warrant. The warrant was overturned by the Ontario Superior Court, which found that the disclosure of the document would only advance the investigation “minimally, if at all”, while infringing freedom of expression. That decision was overturned by the Ontario Court of Appeal.

On appeal, a majority of the Supreme Court of Canada upheld the decision of the Ontario Court of Appeal.  The Court rejected arguments that the freedom of expression provisions of section 2(b) of the Charter included a constitutional right to protect sources, and also dismissed the notion of a class privilege, similar to that enjoyed by lawyers and their clients.

Instead, the Court held that the issue should be decided on a case-by-case basis, relying on the following four-part test: (a) the communication originated in a confidence that the source’s identity would not be disclosed; (b) confidentiality was essential to the relationship between journalist and source; (c) the relationship was one that should be “sedulously fostered” (that is, consciously encouraged); and (d) the public interest in protecting the source’s identity outweighed the public interest in getting at the truth.

However, the Court lightened the burden of what the media must prove, emphasizing the value of confidential sources and the importance of protecting their identities in most cases.  The majority reviewed a list of notable stories that relied on such sources and made clear that this was an unusual case and that, generally, courts should be reluctant to order the disclosure of confidential sources.

All in all, it was a mixed blessing for investigative journalism but perhaps the best result that could be hoped for by the media, short of a constitutional right to protect confidential sources.