Media Law for Canadian Journalists

HomeIssue: Confidential Sources

Globe and Mail v. Canada (Attorney General), 2010 SCC 41

Case Summary

The Facts

Daniel Leblanc is a reporter for the Globe and Mail who played an important part in exposing the federal sponsorship scandal. He acquired significant information that helped his investigation from a confidential source, code-named MaChouette. He has refused to reveal the identity of his source, and the Supreme Court of Canada has sent the case back to the Superior Court of Quebec for a rehearing. Groupe Polygone, one of the companies involved in the sponsorship scandal that is also currently being sued by the federal government, wants to find out the identity of Leblanc's source.

If Leblanc is compelled to release the identity of his source, tipsters like MaChouette might think twice about giving important information that is in the public interest to journalists. In a similar case (R. v. National Post, 2010 SCC 16), the Supreme Court of Canada dismissed the appeal of Andrew McIntosh, a journalist for the National Post, who also refused to identify a confidential source. McIntosh's source was suspected of wrongdoing (falsifying the documents given to McIntosh) and this was one of the reasons the Court quashed the journalist's appeal. Unlike in the National Post case, however, Leblanc's source is not suspected of having committed a crime or any other wrongdoing, and this may influence the Court's decision.

The CBC reports: "David Paccioco, a law professor at the University of Ottawa, said Leblanc's best defence is to 'persuade the court that the nature of the story that was broken had such tremendous public interest and the ability to break that story depended on a promise of confidentiality.'"

The Opinions

The Majority Opinion

The Supreme Court unanimously held that the journalist-source privilege appeal be allowed and remitted to the Superior Court of Quebec to consider. The Court also allowed the publication ban appeal and quashed the order prohibiting the publication of information relating to the settlement negotiations. The discontinuance appeal was dismissed.

The Court decided to consider future journalist-source privilege matters on a case-by-case basis rather than creating a constitutional basis by which journalists could always refuse to identify sources. The Court laid out the criteria by which the cases should be approached. First, to compel a journalist to answer questions that could result in disclosure of a source's identity, the requesting party must show that the questions are relevant. If they are, the court then considers the four Wigmore factors: "(1) the relationship must originate in a confidence that the source's identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth."

Some factors that relate to the fourth Wigmore criterion include: "the stage of the proceeding when a claim of privilege is raised; the centrality of the issue to the dispute; whether the journalist is a party to the litigation, or simply a witness; whether the facts, information or testimony are available by any other means; the degree of public importance the journalist's story; and whether the story has been published and therefore already in the public domain."

Regarding the publication ban appeal, the Court stated that the Superior Court judge's order in effect limited Leblanc's freedom of expression rights under the Canadian Charter of Rights and Freedoms. Allowing the ban to stand would prevent the public from learning about the story, which impinges on the media's responsibility to report stories that are in the public interest.

Excerpts from the Decision

"Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of case-by-case privilege in the criminal law context is equally relevant for civil litigation matters subject to the laws of Quebec; recognition would result in consistency across the country, while preserving the distinctive legal context under the Civil Code of Quebec. This case-by-case approach is consistent with the overarching principles set out in the Civil Code, the Quebec Charter and the Canadian Charter, and conforms with the law of evidence in Quebec as found in the Civil Code and the Code of Civil Procedure. It is also sufficiently flexible to take into account the variety of interests that may arise in any particular case."

"Considering the publication ban on its merits, maintaining the confidentiality of settlement negotiations is a public policy goal of the utmost importance. However, confidentiality undertakings bind only the parties and their agents. Neither [Leblanc] nor the Globe and Mail was a party to the settlement negotiations. The wrong was committed by the government source who provided [Leblanc] with the information. Nothing in the record suggests that [Leblanc] was anything other than a beneficiary of the source's desire to breach confidentiality. [Leblanc] was not required to ensure that the information was provided to him without the source breaching any of her legal obligations and he was under no obligation to act as her legal adviser."

Effects of the Decision

This case did not entrench in law a journalist's right to protect his or her sources. The Court did, however, recognize that a journalist's ability to offer protection to a source is an important consideration when weighing the public good of disclosure versus that of protection. In doing so, the Court decided that future journalist-source privilege cases be decided on a case-by-case basis by the criteria set out in the Wigmore framework. This decision should give journalists some peace of mind in that, by the criteria that the Supreme Court set out in this case, they will not be compelled to reveal sources without a good reason. The revelation of a source's identity must have some public good or else it will not be ordered. However, the application of the Wigmore criteria to journalist-source privilege cases is not new to this case, so the way in which these cases are handled should not change significantly.

Commentary on the Case and Decision

"The Supreme Court of Canada demonstrated respect and understanding on Friday for news reporting that depends on confidential sources. It set an appropriately high bar for judges who may wish to order journalists to reveal those sources, in civil or criminal cases. The court has in effect given the organized news media the tools to do investigative journalism in the public interest."

— Globe Editorial, The Globe and Mail

"Today's ruling 'reaffirms the availability and force of the journalist-source privilege as a legally recognized and enforceable protection, on a case by case basis,' said Philip Tunley, a lawyer and member of the CJFE board. 'What is the better news here, on the better facts, is that the privilege is enforced by the Court and the journalist and his sources are protected, unlike the National Post case.'"

— Grant Buckler, J-Source

"Nothing about this case changes these basic facts. Courts, not the media, continue to determine if a source should be confidential, and the criteria have not changed. In short, the media has not been given 'new' tools. Essentially the same tools as before apply.

"Indeed, this case is at best a draw (albeit an important one) for the Globe's lawyers. This is because they were arguing for new and special rights, specifically the recognition that 'the basis of the journalist-source privilege is a constitutional one.'"

— David Eaves, eaves.ca

Bibliography

Link to the full decision: Globe and Mail v. Canada (Attorney General), 2010 SCC 41

Globe Editorial: Standing up for newshounds. 2010. The Globe and Mail, October 22.

Buckler, Grant. 2010. Decision reinforces case-by-case approach to protecting sources. J-Source.ca — The Canadian Journalism Project, October 22.

Eaves, David. 2010. How the Globe editorial board is misleading you about journalism. eaves.ca, October 25.