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Journalists' Secret Sources May Not Be So Secret After All

Not all categories of employment are governed solely by cookie-cutter laws such as employment standards statutes. Journalists are an example of a group which, to some degree, operates under a specialized set of laws.
 
Journalists are occasionally in the position of receiving information from sources who do not want their identity revealed. The journalist will provide a promise of confidentiality but the issue is the degree to which the journalist can actually uphold that promise.
 
The Supreme Court of Canada recently had an opportunity to review the extent to which journalists can protect the identity of a confidential source.   The result is one which media organizations will surely condemn.
 
Her Majesty the Queen v. National Post involved an attempt by an unknown person to dupe the National Post into publishing a document which implicated a former Prime Minister of Canada in a serious conflict of interest. The implication was that the former Prime Minister was improperly involved with a loan from a federally funded bank to a hotel in the Prime Minister’s riding (which hotel allegedly owed a debt to the Prime Minister’s family investment company).
 
The document had been provided to a National Post journalist who, in return, provided an unconditional promise of confidentiality. When the document was revealed, the former Prime Minister (and others) stated that the document was a forgery.
 
The RCMP obtained an order compelling the National Post to assist them in locating the allegedly forged document. Their intention was to subject the document to forensic testing to determine if it would offer up any fingerprints or other identifying markings such as DNA which might identify its creator.
 
The National Post applied, successfully, to quash the order. The Ontario Court of Appeal reversed that decision, reinstating the original order. That decision was appealed to the Supreme Court of Canada.
 
The Supreme Court reviewed both the general law protecting the identity of journalists’ sources and the question of whether the National Post should have to hand over the allegedly forged document.
 
The media’s argument, of course, is that unless journalists can offer anonymity to confidential sources, freedom of information in debate on matters of public interest will be compromised. As the Court stated, “Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.”
 
The Court stated that, in appropriate circumstances, “the courts will respect a promise of confidentiality given to a secret source” by a journalist. However, the “public’s interest in being informed about matters that might only be revealed by secret sources … is not absolute” and “must be balanced against other important interests, including investigation of a crime”.
 
The Court emphasized that the “many important news gathering techniques, including reliance on secret sources, should not … be regarded as entrenched in the Constitution.”
 
The common law does not, therefore, recognize a blanket privilege protecting journalists from compelled disclosure of secret sources. Journalists’ claims for protection of secret sources must be assessed on a case-by-case basis taking into account the established common law rules of privilege.
 
Until all aspects of the common law rules of privilege have been satisfied (the burden is on the journalist to do so), no privilege arises and the “evidence is presumptively compellable and admissible”. That being the case, “no journalist can give a secret source an absolute assurance of confidentiality”.
 
In the circumstances of this particular case, the Court sided with the police. The allegedly forged document was deemed “essential to the police investigation and likely essential as well to any future prosecution”.
 
The next time a journalist promises you confidentiality or anonymity, you might ask whether he or she has read up on the law lately.
 
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto www.pushormitchell.com.