Journalistic Privilege in R v National Post: Freedom of the Press and the Wigmore criteria

On May 22, 2009, the Supreme Court of Canada (“SCC”) is scheduled to hear National Post, et al v Her Majesty the Queen, 2008 ONCA 139 [National Post], a case which should answer a question of grave concern to investigative journalists across Canada. At issue in National Post is whether the police can obtain a warrant for the production a document which may reveal the identity of a news reporter’s confidential informant when investigating a crime? A summary of the facts in the case has been outlined by Kevin Tilley here.

Having recently received a copy of the factum submitted to the SCC in this case (which should soon be available online here), I thought it might be interesting to foreshadow the upcoming hearing by pointing out some of the arguments submitted by the appellants concerning the interplay between the Charter rights at stake and the competing need for thorough police investigations.

The main segment of Ontario Court of Appeal (“ONCA”) decision with which the appellants took issue is found at para 74 of the ONCA judgment:

In our view, whether considered under the law of privilege or under s. 2(b) of the Charter, the analysis, with one caveat, is in substance the same. Both analyses require the court to balance the privacy interest of the press and the competing law enforcement interest of the state. The caveat – which the reviewing judge properly recognized – is that the application of the Wigmore criteria must itself take account of the values underlying ss. 2(b) and 8 of the Charter.

The appellants argue that the ONCA did not sufficiently develop the Wigmore criteria to take into account the s. 2(b) rights (para.30). The appellants see 3 problems that stem from characterizing the privilege analysis as “in substance the same” as a Charter analysis: (1) such a “Charter values” approach to the development of the common law is appropriate only in private disputes, but not when the Charter applies directly (para 35); (2) that such a formulation improperly places the burden of proof on the reporter to justify the benefits of keeping the informant secret, instead of properly placing the burden of proof on the crown to prove why an infringement of the Charter is necessary (paras 36-39); and (3) that the Court of Appeal espoused an overly narrow perspective of the interests at stake which overemphasized the journalist-criminal wrongdoer relationship instead of the journalist-confidential source relationship (paras 40-44).

In its stead, the appellants suggest that the principles laid out by the SCC in Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835, and R v Mentuck, [2001] 3 SCR 442, with regards to the common law determination of publication bans should be adopted. At para 49, they write:

In light of the s. 2(b) limitation that has been established in this case, the fourth Wigmore criterion should be reformulated as follows, to integrate a requirement of demonstrable justification into the analysis:

When the first three Wigmore criteria have been established, and the party claiming the privilege has shown that disclosure of the information will infringe s. 2(b), disclosure of the information should only be ordered if the state can establish that:

(a) disclosure is necessary in order to prevent a real and substantial risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects arising from disclosure outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression and the efficacy of the administration of justice.

Time will tell whether the SCC is convinced by this line of argument, which imports a higher threshold of ‘real and substantial risk’ before the news reporter will have to disclose his/her confidential source. If they are, the above test may very well become the law in Canada as it pertains to the delicate balance between the competing interests in this case.

With webcasts now available online, interested parties will no longer have to travel to Ottawa to see the hearings in person. That said, in light of the profound implications that National Post is likely to have on Canadian journalism, many journalists will choose to make the trip anyway.