Subpoena, Search Warrant and Production Order

Canwest Publishing Inc. v. Wilson


The defendant in a debt action, Charles Blair Wilson, (and plaintiff by counterclaim for defamation) applied for an order requiring Elaine O’Connor a journalist (and defendant by counterclaim) to disclose the identity of one of her sources. The defamation claim arose out of a lengthy story given front page prominence by the Vancouver newspaper The Province on October 28, 2007. At the time, Wilson was the Liberal Member of Parliament for the riding of West Vancouver-Sunshine Coast. The article contained information from a number of sources, including three confidential sources who spoke on condition of anonymity. In the lower court the chambers judge ruled that the journalist reveal the identity of her confidential sources. The journalist and publisher appealed the lower court decision.

Decision Summary

Justice Ryan, in writing for the court, examines the chambers judge’s formulation and application of the test for journalist-source privilege. At para. 48, Ryan J. points out that journalist-source privilege is derived from the common law.

[48]…Where the identity of a journalist’s confidential source is relevant to a litigant’s case and is sought by the litigant from the journalist, the court will protect the information from compelled disclosure if the journalist asserting the privilege can establish that: 1) there exists a confidential relationship between the journalist and his or her source that ought to be protected; and, 2) the circumstances are such that the public interest in protecting the identity of the source outweighs the public interest in getting at the truth in the particular case.

And, if it is established that the questions being asked of the journalist that would identify the confidential source are relevant:

[49]…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.

Justice Ryan goes on at para. 50 to cite the Wigmore factors, as found in Globe and Mail v. Canada (Attorney General):

(i) the relationship must originate in a confidence that the source’s identity will not be disclosed;

(ii) anonymity must be essential to the relationship in which the communication arises;

(iii) the relationship must be one that should be sedulously fostered in the public interest; and

(iv) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

Ryan J. states in para. 54 that in applying the third Wigmore factor, the chambers judge “found that he could reach no conclusion on the question of whether this was a relationship that should be sedulously fostered because he did not know whether the motive of the source was high-minded or malicious”. Thus, she concludes that the chambers judge conflated the third and fourth Wigmore criteria.

Justice Ryan goes on to state, at para. 56:

Any questionable ulterior motives the informant might have are irrelevant to the consideration of the Wigmore criteria in this particular case. The source may have hoped to destroy Mr. Wilson’s parliamentary career, but that desire would be beside the point if the information provided was true and thus in the public interest to reveal…. The confidential relationship between a person who reveals the possible existence of electoral fraud to a reporter investigating corruption is a relationship that must sedulously be protected in the public interest.

And, in reference to the fourth Wigmore factor, Ryan J. finds at para. 57 and 58, that because the chambers judge concluded that “he was unable to determine whether the source was malevolent or high-minded, the appellants (journalist) had not established journalist-source privilege…” he was imposing an obligation that was not required to be fulfilled.

Justice Ryan concludes by stating, at para. 60:

…I am of the view that the issue of the identity of the source is not central to the dispute between the appellants and Mr. Wilson…It is difficult to see how the identity of the confidential source could be relevant to whether Canwest or Ms. O’Connor acted maliciously.