Wigmore Criteria Upheld for Journalistic Sources

The Supreme Court of Canada released the highly-anticipated decision in Globe and Mail v. Canada on Friday. The court considered three appeals emerging from the Sponsorship Scandal or “AdScam,” where a misappropriation of public funds in Quebec under Paul Martin’s Liberal Party of Canada, which ultimately led to his party’s downfall. The scandal is still cited as one of the main reasons why the Federal Liberals continue to suffer in the polls.

The Globe & Mail has made their factum and the respondent’s factum available on their website, along with responses from various individuals in the legal and publishing industries.

The appeals arises from attempts by Le Groupe Polygone Éditeurs Inc. to identify as part of their defence the confidential source used by Globe investigative journalist, Daniel Leblanc, in his stories in covering the scandal. In 2008, the Quebec Court of Appeal refused the Globe’s attempt for a discontinuance, where they argued that answering Polygone’s questions would result in a breach of journalist-source privilege.

LeBlanc then published an article,“Sponsorship firm moves to settle with Ottawa,”revealing insider information on settlement offers by Polygone which were rejected by the government. The Quebec Superior Court of Justice ordered LeBlanc to stop publishing confidential information relating to the settlement of the case, which was upheld by the Quebec Court of Appeal, even though no written reasons were provided. A similar order against La Presse and Joël-Denis Bellavance did provide written reasons, but was quashed on a appeal and is currently seeking leave to appeal to the Supreme Court.

The third appeal related to a discontinuance of proceedings, and was considered irrelevant if the other two appeals were upheld.

The Supreme Court remanded the issue back to the Quebec courts. They refused to acknowledge a class‑based constitutional basis for journalist-source privilege under s. 2(b) of the Charter, citing the reasons identified in the recent decision in R. v. National Post (mentioned previously here on Slaw by Simon Chester),

[20] The Court was presented with three possibilities for recognizing the journalist-source privilege in the context of a criminal investigation: a constitutional privilege rooted in s. 2(b) of the Canadian Charter; a class-based privilege, analogous to solicitor-client privilege; or a privilege recognized on a case-by-case basis according to the four-factored Wigmore framework. The Court, unanimously, rejected the first two options. With respect to a constitutional privilege, Justice Binnie, writing for the majority, found that it carried the argument too far to suggest that specific newsgathering techniques are constitutionally entrenched. Furthermore, this Court had avoided conferring constitutional status on testimonial immunities more generally. Finally, the Court was unprepared “[t]o throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever ‘sources’ they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it” (para. 40). The Court also held that, while there was a need for the law to protect the identity of confidential sources in some circumstances, the purpose of free expression guaranteed in s. 2(b) could be met without granting a broad constitutional immunity to journalistic sources. Therefore, an order compelling a journalist to identify a source would generally not violate s. 2(b) (para. 41).
[emphasis added]

[21] The Court also rejected the existence of a class-based privilege, on the basis that there is no formal accreditation or licensing process for journalists in place, as there is for lawyers for example, and no professional organization regulates the profession and maintains professional standards (para. 43). Nor is it clear, when dealing with this type of privilege, whether the journalist or the source is the “holder” of the privilege (para. 44), and no one had been able to suggest “workable criteria for the creation or loss of the claimed immunity” (para. 45). Finally, because a class-based privilege is more rigid than a privilege recognized on a case-by-case basis, it would “not lend itself to the same extent to be tailored to fit the circumstances” (para. 46) as they arise in individual cases.

What the Court did opt for is what some media sources are calling a “four-point test,”which are none other than our old friends, the 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
4. the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth

These Quebec Superior Court was instructed to use this case-by-case approach to determine whether privilege should exist here. A discussion of how the factors relate to the journalism industry can be found in this decision, and The National Post one in May, but the court did provide a summary:

[65] In summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, having regard to the particular demand for disclosure at issue. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.

[66] The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means. As discussed earlier, this list is not comprehensive…
[emphasis added]

The Court concluded that public interest in confidentiality was based on the extent that the questions would reveal the identity of LeBlanc’s confidential source. He could not refuse to answer questions which would not reveal this identity but would still advance Polygone’s defence. He should only be compelled to speak if his response was vital to the integrity of the administration of justice, keeping in mind the high value society places in maintaining investigative journalism.

The Court also overturned the publication ban, as the ex proprio motu powers expressed in s. 46 of the Quebec Code of Civil Procedures are an extraordinary remedy that should not be applied without even hearing submissions from either party, especially when dealing with constitutional rights.