October 22, 2010
Globe and Mail v. Attorney General of Canada
Disposition from Headnote:
Held: The journalist‑source privilege appeal should be allowed and the matter remitted to the Superior Court of Quebec for consideration in accordance with the reasons for judgment. The publication ban appeal should be allowed and the order prohibiting the publication of information relating to the settlement negotiations quashed. The discontinuance appeal should be dismissed as moot.
Summary
The decision dealt with three related appeals the first two of which raised important issues of interest to members of the media: (1) Journalist-Source Privilege, and (2) Publication Bans. The third appeal, regarding a motion for discontinuance, was rendered moot on account of the Court’s finding in the first two.
Journalist-Source Privilege
The first appeal raised the issue of whether the relationship between Mr. Leblanc and MaChouette is protected by journalist-source privilege, and thereby exempts Mr. Leblanc from answering any questions that would lead to her identification.
The Supreme Court begins by endorsing its decision in National Post as providing the proper framework determining if and when to apply journalist-source privilege:
[22] The Court concluded that the case-by-case approach, based on the Wigmore criteria and infused with Canadian Charter values, provided “a mechanism with the necessary flexibility to weigh and balance competing public interests in a context-specific manner” (para. 51), and would allow the “opportunity for growth that is essential to the proper function of the common law” (para. 55). Therefore, in order for journalist-source privilege to be recognized in a particular case, the claimant must satisfy all 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 (para. 53).
However, despite identifying the National Post test as appropriate, the Court faces some additional obstacles to applying it in this case. First this situation involves civil litigation. Second the dispute occurs in Quebec. The venue raises two new issues: (1) is there a basis in the Quebec Charter for class privilege protecting journalistic sources and (2) can the common-law Wigmore criteria even be applied in a civil code jurisdiction like Quebec?
[25] While this appeal raises issues similar to those addressed in National Post, the context is nevertheless different. This case involves civil litigation, not the criminal investigative process. It involves testimonial compulsion, and not the production of documents or other physical evidence. The parties’ dispute is subject to the laws of Quebec and the Quebec Charter. These factors must be considered in determining how, and to what extent, the majority reasons in National Post are equally applicable to the issues raised by this appeal.
In response to the first issue the Court rejects the argument that Quebec Charter, unlike the Canadian Charter (as decided in National Post) provides a basis for journalist-source privilege. It examines the three sections raised as possible sources for such privilege and finds that there is no such basis:
Not in section 3, the right to freedom of expression:
[32] It was argued before us that ss. 3, 9 and 44 of the Quebec Charter can constitute the basis for a class-based, quasi-constitutional journalist-source privilege in the province of Quebec, analogous to the claim of a constitutional class privilege rooted in the Canadian Charter that was argued in National Post.
nor section 44, the right to information:
[34] […] While the s. 44 right can also inform the protection of the confidential relationship between journalists and their sources, it cannot constitute the basis for recognizing that privilege
Nor even the professional secrecy provisions in section 9:
[35] […] Professional secrecy applies only to those professionals bound to it by law, and is currently restricted to the 45 professional orders subject to the Quebec Professional Code, R.S.Q., c. C-26 (see, e.g., N. Vallières, “Le secret professionnel inscrit dans la Charte des droits et libertes de la personne du Québec” (1985), 26 C. de D. 1019, at pp. 1022-23). This list does not include journalists, even though their inclusion was contemplated, but yet ultimately rejected, by the National Assembly (see Journal des débats : Commissions parlementaires, 3rd Sess., 30th Leg., No. 6, January 22, 1975, at p. B-322; Ministry of Justice, Justice Today, by J. Choquette (1975), at p. 232). Accordingly, professional secrecy cannot ground a quasi-constitutional right to the protection of media sources.
[37] More importantly, journalism is not a profession of the type that professional secrecy traditionally purports to protect. Professor Ducharme has described the two criteria that must be satisfied before a professional will be made subject to professional secrecy:
[TRANSLATION] First, there must be a law that imposes an obligation of silence on an individual and, second, that obligation must be rooted in a helping relationship. In our view, only members of professional orders governed by the Professional Code meet this twofold condition.
(L’administration de la preuve (3rd ed. 2001), at p. 94 (emphasis added))
The second criterion is an important one: that the obligation of silence be rooted in a relationship where the beneficiary of the privilege seeks out the professional for personal help or assistance. In other words, the obligation of confidentiality is [TRANSLATION] “in the exclusive interest of the person who disclosed [the information], and in the context of a helping relationship” (Ducharme, at p. 97). Given this emphasis on “helping relationship”, and the fact that some 45 professions are already by law subject to s. 9, Ducharme suggests that [TRANSLATION] “no member of any other profession would meet this twofold condition” (p. 97).
Having disposed of the Quebec Charter as a potential source of a journalistic privilege, the Court then consider whether the common-law Wigmore test which they used in National Post can be imported to Quebec.
After an extensive examination of the interaction between Civil Code the Code of Civil Procedure and common-law principles, the Supreme Court determines that Wigmore or “Wigmore-like” principles have application to the case at bar.
[53] There is therefore a basis in the laws of Quebec for a journalist-source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec. This approach conforms both with s. 2(b) of the Canadian Charter and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission of the intervener Canadian Civil Liberties Association that the Wigmore framework cannot differentiate between relationships that have a constitutional dimension and those that do not. It is clear that it does so already (R. v. Gruenke, [1991] 3 S.C.R. 263; National Post). This approach also accords with the law of evidence in Quebec. The C.C.Q. grants judges the authority to exclude evidence or testimony in the event of a breach of the Quebec Charter. It is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his s. 2(b) Canadian Charter and s. 3 Quebec Charter rights are found to be paramount. Indeed, I would add that art. 46 of the C.C.P., which provides for the general powers of the Superior Court, appears to provide its judges with the necessary authority to do so on a case-by-case basis:
The courts and judges have all the powers necessary for the exercise of their jurisdiction.
They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.
Having settled on using the Wigmore framework once again, the Court quickly reviews the four steps and the considerations that must be taken into account at each step. In summarizing its proposed test, the Court reitterates the importance of testing a question for relevance before going on to consider whether privilege applies.
[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. I will now consider whether a claim of privilege could be established in this case.
But after all this preparation, we will ultimately have to wait to see this framework applied in a Quebec Superior Court. The Supreme Court declined to apply the factors and make its own determination. It has simply clarified the National Post test and affirmed that it shall apply in Quebec as well as the rest of Canada.
[70] I would therefore allow the appeal, with costs throughout, and quash the decision of the Superior Court. Given that neither party was permitted to make submissions or tender evidence on the issue of journalist-source privilege, particularly with respect to the balancing of interests at the fourth stage, I would remit the matter to the Superior Court for a consideration of Mr. Leblanc’s claim, in accordance with these reasons.
Publication Ban
Although the Supreme Court decision did not change or define the substantive law around publication bans with this decision it did reinforce the gravity of such measures and sternly reminded lower courts that the Media has the right to make substantial submissions before a publication ban is ordered. The court found that the lower court judge erred in not applying the test formulated in Dagenais/Mentuck and then itself applied the test rather than remitting the question to the lower court. The court overturned the ban and awarded The Globe costs throughout.
[75] Given these circumstances, the fact that de Grandpré J. made the impugned order on his own motion and without having heard submissions from either party is sufficient to allow the appeal. While I recognize that art. 46 of the C.C.P. gives Superior Court judges the authority to make orders ex proprio motu, it is incumbent on the judge to do so to “safeguard the rights of the parties”. A publication ban, which by its very nature infringes the constitutional rights of the party against whom it is imposed, cannot, absent extraordinary circumstances not present here, be imposed ex proprio motu. However, because the question of the publication ban has yet to be considered on its merits, I will proceed with a complete analysis.
While conducting the complete analysis, the Court made some interesting comments about the right of the media to publish material without regard to whether the source breached a duty of confidentiality.
[98] While not in any way wanting to diminish the importance that this Court places on the confidentiality of settlement negotiations, I again emphasize that the confidentiality undertakings are binding only on the parties to negotiation. The obligation does not, and cannot, extend to the media. Neither Mr. Leblanc nor the Globe and Mail did anything — illegal or otherwise — to obtain the information published in the article. Mr. Leblanc did not even have to make any requests in this regard. As discussed earlier in these reasons, I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations. This would place too onerous an obligation on the journalist to verify the legality of the source’s information. It would also invite considerable interference by the courts in the workings of the media. Furthermore, such an approach ignores the fact that the breach of a legal duty on the part of a source is often the only way that important stories, in the public interest, are brought to light. Imposing a publication ban in this case would be contrary to all these interests.