Canadian Justices Say No to Privilege, Yes to Publication Ban

The Supreme Court of Canada handed down two rulings in May and June of 2010 that could have a significant impact on newsgathering there.

Court Rules Against a Journalist's Privilege

On May 7, 2010, the Court ruled 8 to 1 that journalists do not have a constitutional right to shield the identity of their sources and said that such a privilege should instead be determined on a case-by-case basis, with courts applying a four-part balancing test before requiring disclosure. R. v. National Post, 2010 SCC 16 (Can.)

The Toronto-based National Post and reporter Andrew McIntosh had asked the Supreme Court to throw out a search warrant issued by the Ontario Court of Justice on July 4, 2002, which authorized the Royal Canadian Mounted Police to seize from the newspaper allegedly forged bank records and the envelope in which they were received from a confidential source. The documents implicated then-Prime Minister Jean Chrétien in what the Court called "a serious financial conflict of interest"—accusations of profiting from real estate deals and government policies in his hometown of Shawinigan, Quebec. The Ontario Court of Appeal upheld the search warrant in February 2008, after a lower court had struck it down as a violation of the freedom of expression guarantees of the Canadian Charter of Rights, which is roughly equivalent to the U.S. Constitution's Bill of Rights.

In an opinion that cited, and in some ways reflected, the landmark U.S. Supreme Court decision on journalist's privilege, Branzburg v. Hayes, 408 U.S. 665 (1972), Justice William Ian Corneil Binnie wrote that although "[t]he courts should strive to uphold the special position of the media and protect the media's secret sources where such protection is in the public interest," the "general rule" is that "the public has the right to every person's evidence." Like Justice Byron White's opinion in Branzburg, Binnie acknowledged the importance of anonymous sources as an important investigative newsgathering tool, but declined to find protection for it in Charter of Rights' freedom of expression clause. The Court also emphasized, however, that the balance between the public interest in keeping a source's identity secret and the interest in disclosure should not always favor a government investigation, because government actions could arise out of what U.S. courts would call "bad faith."

"There may be circumstances where the criminal investigation appears to be contrived to silence improperly the secret source, and in such cases the court may decline to order production," Binnie wrote. He added that although the Court declined to recognize a "class privilege" for journalists in the common law, it "is likely that in future such 'class' privileges will be created, if at all, only by legislative action." A May 7 post on the Canadian Media Lawyers Association website Ad IDEM said Binnie's comment was "perhaps an invitation to journalists to lobby for ... statutory protection."

Binnie observed that Canadian "courts have long accepted the desirability of avoiding where possible putting a journalist in the position of breaking a promise of confidentiality or being held in contempt of court." The Court listed important news stories in Canada that might not have otherwise been reported without confidential sources, but said a "proper balance" must be struck "between ... the public interest in the suppression of crime and the public interest in the free flow of accurate and pertinent information. Civil society requires the former. Democratic institutions and social justice will suffer without the latter."

"Viewed in this light," Binnie wrote, "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." However, Binnie also observed that "it carries the argument too far, in my view," to suggest that any particular newsgathering technique "should itself be regarded as entrenched in the Constitution."

Moreover, Binnie expressed reservations about creating "a constitutional immunity" for journalists, in light of the fact that "the protection attaching to freedom of expression is not limited to the 'traditional media', but is enjoyed by everyone ... who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the 'news' at passing pedestrians or publishing in a national newspaper." Binnie added, "To throw constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy."

The Court adopted a "case-by-case" approach to determine whether a journalist should be able to claim a privilege not to disclose confidential sources or information, wherein it applied a four-part test, called the "Wigmore criteria" for the author of 1961 law treatise that outlined the test.

Under the four-part test, a court must determine first whether the communication "originate[d] in a confidence that the identity of the informant will not be disclosed"; second, whether the confidence is essential to the relationship in which the communication arises; third, whether the relationship is one which should be diligently, deliberately, and consciously fostered in the public good; and "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." The Court cautioned that the test is not "carved in stone" but should "provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court."

As applied to the Post's appeal, the Court ruled that the first three criteria were met, but "the dissemination of forged bank entries designed to 'prove' an egregious conflict of personal financial interest on the part of the Prime Minister involving public funds is of sufficient seriousness to justify amply the decision of the police to investigate the criminal allegations within the limits of their ability and resources," and therefore the public interest in disclosure outweighed the public interest in nondisclosure.

The Court also addressed competing arguments between the government and media about which party should bear the burden of proof on the fourth part of the test. Binnie rejected the media's argument that once the first three criteria are met, the Charter of Rights' protection of freedom of expression required the government to establish the necessity for disclosure. On the other hand, Binnie also rejected the government's argument that the existence of any crime would shift the balance automatically in its favor, writing "the weighing up will include (but of course is not restricted to) 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. The Crown argues that the existence of any crime is sufficient to vitiate a privilege but that is too broad a generalization. The Pentagon Papers case originated in circumstances amounting to an offence, yet few would now argue that the publication of the true facts in that situation was not in the greater public interest."

The Post also argued that, failing recognition of a privilege, the Court should find that the search and seizure was unreasonable, which Binnie declined to do, because the judge issuing the search warrant "allowed a period of a month between its issuance and its execution to ensure the appellants' ability to move to quash it before any seizure occurred." However, Binnie said "when an application for a search warrant is made, there should ... be a presumptive requirement of notice to the affected media organization." Binnie wrote that in circumstances in which an applicant for a search warrant believed the situation was "urgent ... the authorizing judge [should] determine whether the requirement should in fact be waived and ... craft conditions that would, so far as possible, limit interference with the operations of the affected media organization."

Justice Rosalie Silberman Abella dissented. She wrote that she "respectfully part[ed] company" with Binnie on whether the balance should tip in favor of the media on the fourth part of the Wigmore test, and argued that "where, as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgment and pause before trespassing on the confidentiality which is the source of the relationship."

Abella also raised concerns over how much relevant information would actually be provided by the documents and envelope sought in the instant case. "The only possible evidence the envelope could yield, and that only remotely, is the identity of [the source], not of the alleged forger. This would mean that the only purpose for learning the confidential source's identity is to discover who had created this public and awkward controversy. Curiosity about the identity of a confidential source may be understandable, but is never, by itself, an acceptable basis for interfering with freedom of the press." Abella also contended that the alleged crime at issue "is far from sufficiently significant to outweigh the public benefit in protecting a rigorously thorough and responsible press."

The May 7 Ad IDEM post identified "a few silver linings in the judgment," including "formal recognition that the journalist-source relationship is an important one, deserving of protection in many situations" and "the clear inference that if this were not a case involving physical evidence of a crime, considerations favouring protection of sources would be stronger in the balance." The post also hailed the Court's endorsement of a requirement that media be given notice of court orders, "so their concerns can be raised in advance of these orders being issued by a judge."

However, a May 7 Toronto Star story quoted Star lawyer Bert Bruser saying "it's a sad day for investigative journalism because the court has refused to provide constitutional protection for the relationship between a journalist and a source, and that in my view is an incredibly important relationship that needs greater protection."

Court Upholds Statutory Publication Ban

On June 10, the Supreme Court of Canada upheld a federal law that prevents journalists from reporting on evidence presented at bail hearings. Toronto Star v. Canada, 2010 SCC 21 (Can.)

The law, known in the press as the "automatic publication ban," is codified in Section 517 of the Canadian Criminal Code, and requires that, in a bail hearing, a judge must grant an order banning the publication of any evidence and information produced as well as any reasons given for the order if one or more accused individuals requests the ban. Toronto Star v. Canada arose after various media organizations challenged the constitutionality of the law in the context of high profile murder case in Alberta and a terrorism‑related case in Ontario, arguing that the mandatory aspect of the law violates the freedom of expression clause of the Canadian Charter of Rights. Two appeals courts had split on the issue.

In the majority opinion in the 8 to 1 ruling, Justice Marie Deschamps applied a multi-part test—known as the "Oakes test"—to the law, finding that Section 517 "infringes freedom of expression but that the limit can be demonstrably justified in a free and democratic society." Following R. v. Oakes, [1986] 1 S.C.R. 103 (Can.), a law that limits rights and freedoms will be upheld if it can be "demonstrably justified in a free and democratic society." Under the test, "the government must justify its action by identifying a pressing and substantial objective ... [and] show that it is reasonable to suppose that the limit may further the goal, not that it will do so." In determining whether the limit is proportional to the objective, the government must show that the law is rationally connected to its objective, impairment of rights is minimal, and the impairment of rights is outweighed by the benefit derived from the legislation.

Deschamps first found that the objectives of the ban—to safeguard the right to a fair trial and ensure expeditious bail hearings—were "pressing and substantial." Quoting from the dissent in a lower court decision on the case, Deschamps wrote, "The interest in a fair trial embraces not simply the narrow interest of preventing potential jurors from being influenced by prejudicial material that might be disclosed at a bail hearing, but other interests intended to safeguard the accused's and society's interest in a fair trial. ...The objectives of ensuring expeditious bail hearings, avoiding unnecessary detention of accused and allowing accused to retain scarce resources to defend their cases are all inextricably linked to the objective of ensuring a fair trial."

In analyzing the connection of the law to its objectives and its proportionality in comparison to the infringement of free expression rights, Deschamps focused on the fact that, at bail hearings, evidence can be presented that would not satisfy the standard for admissibility in a jury trial. The "rational connection" was therefore established because "the ban prevents the dissemination of evidence which, for the sake of ensuring an expeditious hearing, is untested. ... the publication of proceedings at the preliminary hearing may result in a one-sided view of the case that could have an impact on trial fairness."

Turning to the ban's impact on the right of free expression, Deschamps wrote "it would be difficult to imagine a measure capable of achieving Parliament's objectives that would involve a more limited impairment of freedom of expression." She noted that Section 517 "is not an absolute ban either on access to the courts or on publication. ... the media can publish the identity of the accused, comment on the facts and the offence that the accused has been charged with, and that an application for bail has been made, as well as report on the outcome of the application." Deschamps also noted that the ban is not permanent: "the information it covers can eventually be made public once more complete information produced in accordance with the standards applicable to criminal trials is available."

The Court also dismissed alternatives to the mandatory nature of the ban that the media had proposed, such as allowing the judge the discretion to determine whether the ban was necessary. Deschamps argued that to hold a hearing on the ban prior to the bail hearing would have a negative effect on the presentation of evidence in the bail hearing, and that "accused persons might have to make decisions they would not otherwise have made at a time when they can only speculate on what the Crown intends to adduce at the bail hearing. Such decisions would take time, would require them to make strategic choices and could compromise their rights to silence and to liberty."

In weighing the benefits and drawbacks of the ban, Deschamps focused on the plight of the accused, observing that "a day in the life of an accused person may have a lifelong impact. ... the ban means that accused persons can focus their energy and resources on their liberty interests rather than on their privacy interests ... [including] information relevant to the character of the individual accused and not to the crime ... what kind of person he or she is, and whether he or she is likely to be a danger for society or to appear at trial." Moreover, Deschamps wrote, "A large part of the evidence taken at the bail hearing is presumptively inadmissible at trial. Thus, criminal records, prior consistent statements and post-offence conduct, which may be mentioned at the bail hearing, might not be admitted in evidence at trial. While it is true that all information about the accused might arouse the public's curiosity, such information is often irrelevant to the search for truth in relation to the offence, which is the actual purpose of the criminal trial." Deschamps also noted that leaving the ban to the discretion of a judge would "entail additional issues and adjournments, and would result in longer hearings."

Deschamps acknowledged that "Section 517 bars the media from informing the population on matters of interest which could otherwise be subject more widely to public debate and ... prevents full public access to, and full scrutiny of, the criminal justice process." She also observed that when bail hearings "attract considerable media attention" their "outcomes may not be fully understood by the public ... [and] the media would be better equipped to explain the judicial process to the public if the information they could convey were not restricted." However, "the limits on the publication of information are outweighed by the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information."

Deschamps concluded,"although not a perfect outcome, the mandatory ban represents a reasonable compromise."

Justice Abella, again the lone dissenter, observed that "the public's ability to engage in meaningful discussion about what a judge decides, depends primarily on knowing why the particular decision is made."

Abella called the ban "a profound interference with the open court principle." She observed that although nobody is prevented from attending bail hearings, "what is mandatorily prohibited is the public dissemination of what is disclosed there until the trial is complete, a chronology that can take years to unfold. This has the effect, for all but the handful of people who are present in the courtroom, of denying access to information surrounding a key aspect of the criminal justice system—the decision whether or not to release an accused back into the community pending his or her trial."

Abella also said the ruling contradicted the Court's doctrine on publication bans in the context of pre-trial publicity. Previous cases had established a high threshold for imposing a discretionary ban: "where they are 'necessary' to protect against 'real and substantial' risks to an accused's fair trial rights," she said. The ruling in Toronto Star "completely collapses the constitutional framework ... leaving out of the balance entirely the public's presumptive right to know what goes on in a courtroom," Abella said, concluding, "public confidence in the justice system requires relevant information delivered in a timely way. A mandatory ban on the evidence heard and the reasons given in a bail application is a ban on the information when it is of most concern and interest to the public."

In a June 10 story in the Edmonton Journal, Dan Burnett, a lawyer for the intervening Canadian Newspaper Association, called the ruling "quite a clash with the pretty proud tradition of the Supreme Court's rulings on publication bans. Burnett said such bans were "ordered quite easily 20 years ago" but now they require a threat to the administration of justice as justification.

A June 10 post on Ad IDEM speculated that "the only immediate solution" to the Toronto Star ruling would be an amendment to the Canadian Criminal Code.

It has been active year for the Canadian Supreme Court on media law issues. In December 2009, the Court created a new libel defense for members of the public or media who engage in "responsible communication." See "Canadian Supreme Court Creates New 'Responsible Communication' Defense" in the Winter/Spring 2010 issue of the Silha Bulletin.

- Patrick File
Silha Fellow and Bulletin Editor

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This page contains a single entry by cla published on September 10, 2010 3:36 PM.

Transparency Advocates Protest SEC's New FOIA Exemption was the previous entry in this blog.

Appeals Court Narrows, Upholds Subpoena for Film Outtakes is the next entry in this blog.

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