Protecting Journalistic Privilege

We rely on journalists to expose wrongdoings in society and provide facts and opinion that contribute to informed debate that lies at the heart of a vibrant democracy. Yet this enterprise is undermined and threatened on all fronts. With the internet, news is difficult to commodify and budgets for investigative journalism are meagre to non-existent. Access to information laws in this country are horribly outdated and ineffective. Whistleblower laws, while newer to the scene, are equally inadequate. Political debate is increasingly based on spin, misinformation, or outright lies, which media sources are more inclined to repeat than to investigate.

Journalistic privilege is a key tool for uncovering facts and information that otherwise would remain hidden or inaccessible to the public. The privilege coaxes those who are afraid to “go public” to tell their story. If they are assured by a journalistic that she will not reveal her sources, and the law protects that confidence, then wrongdoing or malfeasance is disclosed to the public through a journalist that otherwise never see the light of day.

Especially given the dilemma of modern journalism, we might hope that the Supreme Court would at least recognize, even invigorate, freedom of press contained in s. 2(b) of the Charter. Far from it. The court has steadfastly refused to give any content to this right, though they like to celebrate it in rhetoric. Why? To do so would mean that they would no longer be able to simply balance journalistic privilege (or other press freedoms) against the public interest in, for example, police investigations of criminal wrongdoing. In the 2010 National Post case, that is exactly what they did. Refusing to recognize journalistic privilege as a constitutional right, it went on to find that the public interest in the disclosure of an alleged forged document to the police weighed in favor of its release even though it was unlikely to provide evidence of the alleged perpetrator. In the upcoming case of Vice Media, I fully expect a majority of the court to favor the police again even though it seems to be a fishing expedition.

This is cold comfort for a would-be informant whose livelihood or well-being might very well hang in this balance that tends to favor disclosure. In other words, the concept of balance might not work here – it will offer no assurance to informants and thus eviscerates the privilege of any real-world traction.

An improvement to the common law, however, is offered by the new Journalistic Sources Protection Act. Procedurally it requires that a journalist or a representative be offered the opportunity to make submissions to a judge prior to her ruling on whether a privilege must be disclosed to an applicant. This is an important safeguard that forces an applicant to have a strong case – one that will be opposed – prior to seeking disclosure. While the test for disclosure in this Act is not improved for criminal proceedings, there does seem to be more concern expressed for the protection of the journalistic privilege in the civil context, as courts are to explicitly consider freedom of the press, and the importance of journalistic privilege and anonymity.

Rather unusually then, this legislation goes further the Supreme Court is protecting a constitutional freedom. However, I think the test should be strengthened even more. Consider Stewart J. dissent in the US landmark case of Branzburg v. Hayes which dealt with consolidated appeals of journalistic privilege claims pertaining to criminal wrongdoing:

I would hold that the government must (1) show that there is probable cause to believe that the [journalist] has information that is clearly relevant to a specific probable violation of law (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of [constitutional] rights and (3) demonstrate a compelling and overriding interest in the information.

The improvement here is twofold. First, requiring the applicant (or police) to identify a specific violation of the law curtails a possible fishing expedition. Second, the balance is weighted in favor of journalistic privilege such that compelling and overriding interest must be demonstrated. A weighted balance in favor of journalistic privilege seems the only way to maintain the real-world relevance of this important press freedom.