Subpoena, Search Warrant and Production Order

R. v. National Post SCC

The Supreme Court of Canada dismissed the appeal of the National Post and left its editor-in-chief and reporter to comply with a search warrant and assistance order and hand over a document and the brown envelope it came in to the police. In the process it left the existing test for protecting a journalist’s confidential source as is, refusing to accept that the test infringed a journalist’s free expression rights, let alone whether or not any such infringement was a reasonable limit, and refusing to accept that an assistance order against a media organization infringes its right to be free from unreasonable search and seizure under Charter s. 8. The decision was 8-1, with Justice Binnie writing the majority judgment, and Justice Abella writing a dissent.

In this case, the majority felt that the documents being sought were evidence of a crime, uttering a forged document, and, like the smoking gun given to a lawyer, had to be handed over for investigation.

All members of the court confirmed that journalist-source privilege would be considered on a case by case basis, not a class privilege. Justice Binnie noted: “It is likely that in future such “class” privileges will be created, if at all, only by legislative action.” He noted that other jurisdictions have enacted shield laws, recognizing in effect that Canada could do that as well.

Despite the outcome, there are a few silver linings in the judgment: First, a formal recognition that the journalist-source relationship is an important one, deserving of protection in many situations; second, the clear inference that if this were not a case involving physical evidence of a crime, considerations favouring protection of sources would be stronger in the balance; and Third, a suggestion that in future, apart from situations involving urgency or a concern that evidence may disappear, the media should be given notice of applications for search warrants and assistance orders, so their concerns can be raised in advance of these orders being issued by a judge.

Justice Binnie began by noting the general rule: “The public has the right to every person’s evidence.” While recognizing that the courts should uphold the “special position of the media and protect the media’s secret sources where such protection is in the public interest”, he noted: “This is a physical evidence case. It involves what is reasonably believed to be a forged document. Forgery is a serious crime.”

He then recapped the circumstances of the case:

[4] This dispute is a controversy of undoubted public importance. It involves an attempt by a person or persons unknown to dupe the National Post into publishing an allegedly forged bank document which, on its face, implicated the then Prime Minister of Canada, Jean Chrétien, in a serious financial conflict of interest. The courts below concluded that the police possess reasonable and probable grounds to believe that the inculpatory entries on the “leaked” document are false. The document, if authentic, would have suggested that at the same time the Prime Minister was said to be exerting influence on the federal Business Development Bank of Canada (“BDBC”) to grant a $615,000 loan to the Auberge Grand-Mère, a private business in his riding, the Auberge Grand-Mère allegedly owed the Chrétien family investment company $23,040. Unless the Auberge Grand-Mère could be saved from insolvency, the story went, the debt would likely go unpaid. The Prime Minister’s private financial interest, on this theory of events, conflicted with his public duty. Some in the media referred to cluster of events around the loan controversy as “Shawinigate”.

He then set out the general principle and the accepted exceptions:

[26] The investigation and punishment of crime is vital in a society based on the rule of law but so is the freedom of the press and other media of communication. The general principle that the public has the right to every person’s evidence is not absolute. Narrow exceptions have been recognized as necessary to further precisely defined and overriding public interests. Thus the identity of the police informant is shielded from an accused. A civil litigant has no right to know what the opposing party privately confided to its lawyer. Spouses cannot generally be compelled to testify against each other. Information pertaining to national security and Cabinet confidences may be withheld on the basis of what is called public interest immunity.

In recognition of the public value of having stories which begin with confidential sources, he reiterated the list of stories identified in the media’s evidence in the case:

[28] … many important controversies were unearthed only because of secret sources (often internal whistleblowers) including:
1. The tainted tuna scandal, that led to the resignation of the Minister of Fisheries in Canada.
2. The story that Airbus Industrie paid secret commissions in the sale of Airbus aircraft.
3. The book For Services Rendered about the search for a suspected KGB mole in the RCMP Security Service, and CBC’s the Fifth Estate program on that mole, codenamed “Long Knife”.
4. Stories dealing with the City of Toronto’s health inspection system for restaurants.
5. A story describing the operation of an illegal slaughterhouse that created a major health hazard.
6. Stories about the fall of Nortel Networks that contrasted optimistic public forecasts by Nortel executives with internal Nortel discussions warning of a potential devastating market downturn.
7. Stories about wrongdoing by members of the RCMP security service in early 1977, including a break-in to obtain documents from a left-wing news agency in Montreal, Agence Presse Libre du Québec, illegal wiretaps in Vancouver and penregisters.

He acknowledged that a balance had to be achieved:

It is important, therefore, to strike the proper balance between two public interests — the public interest in the suppression of crime and the public interest in the free flow of accurate and pertinent information. Civil society requires the former. Democratic institutions and social justice will suffer without the latter.

He reviewed the recognition given by Canadian courts of the importance of confidential sources to journalists:

[30] If a reporter, usually in consultation with an editor, gives an assurance of confidentiality, professional journalistic ethics understandably command that the promise be kept. The courts have long accepted the desirability of avoiding where possible putting a journalist in the position of breaking a promise of confidentiality or being held in contempt of court. See, e.g. St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 230 C.C.C. (3d) 199. Nevertheless, most journalistic codes of ethics recognize that the promise of confidentiality cannot be absolute, see e.g. the Canadian Association of Journalists’ Guidelines for Investigative Journalism regarding “[u]se of confidential and anonymous sources”.

His summary included a reference to the special position of the news media recognized by the Supreme Court in two earlier search warrant cases involving CBC, cases not involving confidential sources, but out-takes of public events: Canadian Broadcasting Corporation v. Lessard, [1991] 3 S.C.R. 421, and Canadian Broadcasting Corporation v. NewBrunswick (Attorney General), [1991] 3 S.C.R. 459.

He noted the media’s convincing evidence in this case:

that unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression in debate on matters of public interest would be badly compromised. Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.

And he concluded:

[34] Viewed in this light, the law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests — including criminal investigations. In those circumstances the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised.

He then analyzed how to characterize claims for protection of confidential sources in law. He concluded that finding constitutional protection under the Charter wouldn’t work, especially in the world of modern communications:

[38] … What is protected by s. 2(b) is freedom of expression. News gathering, while not specifically mentioned in the text of s. 2(b) is implicit in news publication, but there are many techniques of news gathering and it carries the argument too far, in my view, to suggest that each of those news gathering techniques (including reliance on secret sources) should itself be regarded as entrenched in the Constitution. Chequebook journalism is also a routine method of gathering the news, but few would suggest that this too should be constitutionalized. Journalists are quick to use long-range microphones, telephoto lenses or electronic means to hear and see what is intended to be kept private (as in the case of then Finance Minister Marc Lalonde whose budget had to be amended because a cameraman captured parts of what were intended to be secret budget documents on Mr. Lalonde’s desk). Such techniques may be important for journalists (who, unlike prosecutors, have to get along without the power of subpoena), but this is not to say that just because they are important that news gathering techniques as such are entrenched in the Constitution.

[40] There are cogent objections to the creation of such a “constitutional” immunity. As recently pointed out in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the protection attaching to freedom of expression is not limited to the “traditional media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper. To 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 (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.

[41] The law needs to provide solid protection against the compelled disclosure of secret source identities in appropriate situations but the history of journalism in this country shows that the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity.

He then recapped the common law class privilege model to determine if it should apply. He concluded that it “is likely that in future such “class” privileges will be created, if at all, only by legislative action”, perhaps an invitation to journalists to lobby for just that kind of statutory protection. So far, at common law:

[43] Journalistic-confidential source privilege has not previously been recognized as a class privilege by our Court (Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572), and has been rejected by courts in other common law jurisdictions with whom we have strong affinities.

He then gave the reasons:

The reasons are easily stated. First is the immense variety and degrees of professionalism (or the lack of it) of persons who now “gather” and “publish” news said to be based on secret sources. In contrast to the legal profession there is no formal accreditation process to “licence” the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards. Nor, given the scope of activity contemplated as journalism in Grant v. Torstar, could such an organization be readily envisaged.

[44] A second problem arises in determining the respective rights and immunities of the journalist and the source to whom confidentiality has been promised. In the past, secret sources have voluntarily stepped out from the shadows to reveal themselves (as in the St. Elizabeth Home case) with or without the journalist’s consent. Is the journalist now to be given the right to object because, for example, disclosure might reveal “journalist methods” and “journalistic networks”? I do not think such a restriction would in general serve the public interest in the search for truth. On the other hand, the source cannot be said to be the holder of the privilege if, as here, the journalist reserves the right to “out” the secret source unilaterally if, in the journalist’s personal view, the conditions on which anonymity were offered have not been met. In the case of solicitors and their clients, the privilege clearly belongs to the client. Are we to say that journalistic privilege attaches both to the journalist and the secret source? If so, what happens if they fall into disagreement? It is particularly important in the case of class privilege that the rules be clear in advance to all participants so that they may govern themselves accordingly.

[45] Thirdly, no one has suggested workable criteria for the creation or loss of the claimed immunity. The evidence shows that journalistic practice varies considerably as to when promises of confidentiality are properly made. Many news organizations require the journalist to consult with an editor before making such a promise. Others, including the National Post, do not. What would be the criteria for such a class privilege to apply? The various media codes of ethics are themselves in disagreement. In the present case, Mr. McIntosh’s original “blanket, unconditional promise of confidentiality to protect the identity of both X and Y” (McIntosh Affidavit, at para. 156 (emphasis added)) became burdened with an important condition. It was retroactively modified by Mr. McIntosh to last only so long as Mr. McIntosh personally “believed that [X] had not provided the document to deliberately mislead me” (para. 227). Mr. McIntosh says his secret source agreed to this modification, but at that point he or she was not in much of a bargaining position having already delivered up the documents to the appellants. What are the limits to retroactive modification of the journalist’s undertaking? Must the secret source consent to the modification? The media argument raises more questions about the scope and operation of the claimed class privilege than it provides solutions.

Courts have preferred the case by case model. That is what they adopted in the pastor-penitent context. It ought to work in the journalist-source context:

[52] When applied to journalistic secret sources, the case-by-case privilege, if established on the facts, will not necessarily be restricted to testimony, i.e. available only at the time that testimony is sought from a journalist in court or before an administrative tribunal. The protection offered may go beyond a mere rule of evidence. Its scope is shaped by the public interest that calls the privilege into existence in the first place. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant, as in O’Neill v. Canada (Attorney General) (2006), 213 C.C.C. (3d) 389 (Ont. S.C.J.). The scope of the case-by-case privilege will depend, as does its very existence, on a case-by-case analysis, and may be total or partial (Ryan, at para. 18).

The case by case analysis is based on the “Wigmore” criteria, first enunciated by Professor Wigmore years ago:

[53] … First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. … Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.

The court acknowledged that this test is not “carved in stone”:

[55] However, the world of journalism has moved on since Professor Wigmore’s day. The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. The need to shine the light of public scrutiny on the dark corners of some private institutions as well is illustrated by Benotto J.’s reference to corporate delinquencies in the list reproduced above at para. 28. Professor Wigmore’s criteria provide a workable structure within which to assess, in light of society’s evolving values, the sometimes-competing interests of free expression and the administration of justice and other values that promote the public interest. This will provide the necessary flexibility and an opportunity for growth that is essential to the proper function of the common law.

Having established the test, Justice Binnie then reviewed the criteria in this context:

[56] There is little disagreement about the first two Wigmore criteria. The media accepts that privilege can only be claimed where the communication is made explicitly in exchange for a promise of confidentiality. Wigmore was concerned with the confidentiality of the contents of the communication itself (which is not the issue here because it was the mutual intention of the journalist and the source to make the content of the communication public). However, I think the rationale underlying the Wigmore criteria may be applied equally to a new role, namely the maintenance of the confidentiality of the identity of the source. Secondly, the necessity for confidentiality is the raison d’être for the existence of the privilege. If the source does not insist on confidentiality as a condition precedent to the disclosure then no promise of confidentiality will be made and no privilege arises. Journalists prefer in any event to have a source on the record to enable their readers or listeners to evaluate its likely credibility.

[57] The third criterion (that the source-journalist relationship is one that should be “sedulously fostered in the public good”) introduces some flexibility in the court’s evaluation of different sources and different types of “journalists”. The relationship between the source and a blogger might be weighed differently than in the case of a professional journalist like Mr. McIntosh, who is subject to much greater institutional accountability within his or her own news organization. These distinctions need not be canvassed in detail here since the appellants have made out on their evidence, in my opinion, that in general the relationship between professional journalists and their secret sources is a relationship that ought to be “sedulously” fostered and no persuasive reason has been offered to discount the value to the public of the relationship between Mr. McIntosh and his source(s) in this particular case.

[58] The fourth Wigmore criterion does most of the work. Having established the value to the public of the relationship in question, the court must weigh against its protection any countervailing public interest such as the investigation of a particular crime (or national security, or public safety or some other public good).

The media argued that once the first three criteria are met, the Charter’s protection of free expression shifts the onus to the Crown to establish that the necessity for the evidence outweighs the harm to be done to the principle of protection of sources. The court rejected that amendment to the traditional analysis. That said, Justice Binnie opined that the onus would rarely play a pivotal role where “[t]he exercise is essentially one of common sense and good judgment”, quoting an earlier judgment.

To be clear, Justice Binnie rejected the Crown’s argument that the existence of any crime would shift the balance automatically in their favour:

[61] The weighing up will include (but of course is not restricted to) the nature and seriousness of the offence under investigation, and the probative value of the evidence sought to be obtained, measured against the public interest in respecting the journalist’s promise of confidentiality. The Crown argues that the existence of any crime is sufficient to vitiate a privilege but that is too broad a generalization. The Pentagon Papers case originated in circumstancesamounting to an offence, yet few would now argue that the publication of the true facts in that situation was not in the greater public interest.

[62] The underlying purpose of the investigation, as inferred from the objective circumstances, is also relevant at the fourth stage. When investigative reporting strikes at those in power it would not be unexpected that those in power including the police may wish to strike back. There may be circumstances where the criminal investigation appears to be contrived to silence improperly the secret source, and in such cases the court may decline to order production. Thus in O’Neill, an investigation was launched under the Security of Information Act to identify the secret source of a leak to a reporter for the Ottawa Citizen. The reviewing judge, Ratushny J. found that the RCMP sought the warrant with the intent to intimidate the reporter into giving up her sources. The result, the police might have expected, might well have been to disincline the journalist to publish further material on a story that was embarrassing to both the police and to the government (para. 154). In such a case, the demand to deliver up even physical evidence that would disclose the identity of the secret source might well be refused. That is not this case. The alleged forgery is distinct from whistleblowing. In terms of getting out the truth, the “leak” of a forged document undermines rather than advances achievement of the purpose of the privilege claimed by the media in the public interest.

Who owns the privilege?

[63] In a test of balancing the public interest in disclosure versus the public interest in confidentiality neither the journalist nor the secret source “owns” the privilege. Thus where a secret source decides for whatever reason to cast aside the cloak of anonymity the public interest no longer “sedulously fosters” the continuation of the confidential relationship in preference to openness and the search for the truth. In such a case the journalist would have no basis to seek to restrain the self-outing of the secret source. On the other hand, where a journalist decides that the confidentiality arrangement no longer binds (as for example, in this case, if Mr. McIntosh had concluded that the forged bank records had been provided by the source to mislead the National Post deliberately, and had thereby, in his view, forfeited its protection), the balance would again tilt in favour of disclosure. The role and function of the privilege is to facilitate the freedom of expression of the media and their readers and listeners. Where the journalist concludes that the relationship in a particular case should no longer be “sedulously” fostered, the substratum of the claimed privilege is eliminated. The public interest would no longer be served in the particular case by suppression of the identity, but of course in the event of such disclosure, the source might have some sort of private law claim for breach of contract or breach of confidence or other private common law cause of action. Such private law remedies are not before us in this appeal.

In summary, at the fourth stage, the court will weigh:

[64] … the evidence on both sides (supplemented by judicial notice, common sense, good judgment and appropriate regard for the “special position of the media”). The public interest in free expression will always weigh heavily in the balance. While confidential sources are not constitutionally protected, their role is closely aligned with the role of “the freedom of the press and other media of communication”, and will be valued accordingly but, to repeat, at the end of the analysis the risk of non-persuasion rests at all four steps on the claimant of the privilege.

Justice Binnie underscored the distinction between the usual weighing of these issues, and weighing them where physical evidence of a crime is in issue:

[65] At this point it is important to remind ourselves that there is a significant difference between testimonial immunity against compelled disclosure of secret sources and the suppression by the media of relevant physical evidence. If a client walks into a lawyer’s office and leaves a murder weapon covered with fingerprints and DNA evidence on the lawyer’s desk the law would not allow the lawyer to withhold production of the gun on the basis of solicitor-client confidentiality, notwithstanding the thoroughgoing protection that the law affords that relationship. In R. v. Murray (2000), 144 C.C.C. (3d) 289 (Ont. S.C.J.), the court affirmed this principle in the case of a lawyer charged with suppressing sexual abuse tapes. Journalists, too, have no blanket right to suppress physical evidence of a crime, even where its production may disclose the identity of a confidential source. The immunity, where it exists, is situation specific.

Finally, the court’s lesson for journalists:

[69] The bottom line is that no journalist can give a source a total assurance of confidentiality. All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed. In the end, the extent of the risk will only become apparent when all the circumstances in existence at the time the claim for privilege is asserted are known and can be weighed up in the balance. What this means, amongst other things, is that a source who uses anonymity to put information into the public domain maliciously may not in the end avoid a measure of accountability. This much is illustrated by recent events in the United States involving New York Times’ reporter Judith Miller and the subsequent prosecution of her secret source, vice-presidential aide Lewis “Scooter” Libby, arising out of proceedings subsequent to his “outing” of CIA agent Valerie Plame: In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), at pp. 968-72. The simplistic proposition that it is always in the public interest to maintain the confidentiality of secret sources is belied by such events in recent journalistic history.

In this case, the majority concluded that the National Post had met the first three criteria:

[70] The evidence shows that the communication between Mr. McIntosh and source Y respecting the relationship between the Prime Minister and the BDBC originated in confidence. Had confidentiality not been assured the initial information about Mr. Chrétien’s contacts with the BDBC would not have been provided. Secondly, confidentiality was essential to the relationship because without the confidentiality there would have been no disclosure and no relationship. Thirdly, given the importance of investigative journalism in exploring potential conflicts of interest in decision making at the highest levels of government, the relationship between the appellants and their secret sources ought in general to be “sedulously fostered”. Mr. McIntosh testified to a belief that his source is sincere in denying involvement in any offences. The transparency and accountability of government are issues of enormous public importance. The disclosures related to a public controversy over the Prime Minister’s relationship to private promoters seeking loans from a federally funded bank. The public ventilation of this controversy, whatever its ultimate merits, was clearly in the public interest.

But not the fourth criterion:

[71] Coming now to the “weighing up” at the fourth stage of the Wigmore analysis, the alleged crime was described by Mr. McIntosh himself as “serious”. Certainly, the dissemination of forged bank entries designed to “prove” an egregious conflict of personal financial interest on the part of the Prime Minister involving public funds is of sufficient seriousness to justify amply the decision of the police to investigate the criminal allegations within the limits of their ability and resources.

[75]… In my view the police need not accept X’s anonymous, uncorroborated and self-exculpatory statements as a reason to terminate their investigation of the physical evidence any more than they need accept the disclaimers of any other potential witness to a crime, especially when the witness may also be the perpetrator.

[77]… It is the courts, however, and not individual journalists or media outlets, that must ultimately determine whether the public interest requires disclosure. Mr. McIntosh’s belief in the good faith of his source cannot prevent the courts from reaching a different conclusion. Moreover, as Laskin and Simmons JJ.A. noted, “[t]he document and the envelope are not merely pieces of evidence tending to show that a crime has been committed. They are the very actus reus [or corpus delicti] of the alleged crime” (para. 115). In such circumstances the identity of the individual who shipped Mr. McIntosh the forged document has no continuing claim to the protection of the law.

Given that no privilege was found to apply, Justice Binnie then determined whether any procedural rights of the media were infringed under the Charter’s protection against unreasonable search and seizure. He concluded that they were not. The only bright light for the media in his analysis rested in his analysis of what notice the media should have in future in such cases.

[83] I agree with the appellants that the media should have the opportunity to put their case against the warrant at the earliest reasonable opportunity, but the timing is generally a matter within the discretion of the issuing judge. There may be circumstances where the best course of action will be to proceed as Khawly J. did here. Given the broad definition of “media” and “journalists” covered by a potential claim for privilege, the issuing judge may conclude that an outstanding warrant will help ensure that the evidence is not made to disappear while the merits of issuing a warrant are debated. An issued and outstanding warrant may discourage such misconduct. There will be cases of urgency or other circumstances supporting the need to proceed ex parte. In the absence of such circumstances the issuing judge may well conclude that it is desirable to proceed on notice to the media organization rather than ex parte.

While Justice LeBel felt that in this case the absence of notice did not render the search unreasonable, executed as it was on existing law, he agreed with Justice Abella that there should be a presumption in favour of notice to an affected media organization of an application for a search warrant.

The presumption of a notice requirement would allow media organizations to raise their concerns at the first opportunity, thereby precluding or minimizing unnecessary intrusions into their activities.

[96] I emphasize that this requirement should be presumptive. If the applicant feels that notice should not be given because the situation is urgent or because the information or documents being sought might be lost, the application should state this and explain why the notice requirement should be waived. It would then fall to the authorizing judge to determine whether the requirement should in fact be waived and to craft conditions that would, so far as possible, limit interference with the operations of the affected media organization.

In her dissent, Justice Abella relied in part on the lack of notice to come to the conclusion that the search was unreasonable.

[144] … The operating presumption should be that the media’s unique institutional character entitles it to notice when a search warrant is sought against it. A search warrant of media premises is a particularly serious intrusion, and a decision should not be made about its propriety without submissions from the party most affected.

In any case, all the judges agreed that notice was desirable, absent extenuating circumstances.

Justice Binnie’s conclusion that the search was reasonable in the circumstances relied on a number of factors:

[84]…The warrant and assistance order made by Khawly J. in this case allowed a period of a month between its issuance and its execution to ensure the appellants’ ability to move to quash it before any seizure occurred. This procedure allowed the appellants to assemble an evidentiary record more ample than would have been possible on short notice. The appellants took full advantage of the opportunity thus provided. The record in this case fills 16 volumes. The review procedure lasted from the filing of an application to quash the warrant dated July 30, 2002 until its disposition by Benotto J. by judgment dated January 21, 2004. In these circumstances I do not believe the issues of onus and deference can or should play a significant role in the outcome, especially given the court’s concern for the special position of the media in the context of the public interest.

[87] … A detailed affidavit established that the search of a newspaper office was a necessity of last resort … The order of Khawly J. set out conditions governing the search to ensure “that the media organization would not be unduly impeded [by a physical search] in the publishing or dissemination of the news” … Perhaps most importantly, the order contained the usual clause directing that any documents seized be sealed on request.

As for the Assistance Order, Justice Binnie did not accept the media’s arguments that the process was inappropriate in the circumstances. He found that the National Post, combined with the reporter, controlled the document, and should produce it to the police:

[89] … Given the concerted action between Mr. McIntosh and his editor-in-chief, it was entirely reasonable for the issuing judge to enlist the assistance of the editor-in-chief in locating and producing the concealed document.

[90] The appellants claim that the assistance order turns the editor-in-chief into an “agent of the police” in the collection of evidence. This is overly dramatic. Editors, journalists and sources do not, by reason of the important roles they play, cease to be members of the community in which they live. The claim for privilege in this case is rejected The editor-in-chief, as every other member of the community, is required in the ordinary way to respect the law. From the media perspective assistance orders requiring the surrender of the document are surely preferable to a physical search of the media premises. In my view, the assistance order was reasonable within the meaning of s. 8 of the Charter.

In dissent, Justice Abella would have allowed the Post’s appeal. She agreed with the majority that the Wigmore criteria applied, but questioned the onus on the media under the fourth prong of the test. In the circumstances of the case, she felt that the value to the Crown was far outweighed by the harm to the principle of protection of confidential sources.

[100] In this case, the state seeks to obtain evidence that is of only questionable assistance in connection with a crime of moderate seriousness. It is information that could, theoretically, identify a journalist’s confidential source, a person who may not even be in a position to provide information of any utility whatever to the investigation. When both sides of the scales are weighed in this light, there is, in my view, no contest. I would refuse to order disclosure and quash both the search warrant and assistance order.

[116] Where I respectfully part company with Binnie J. is at the fourth and final stage of the Wigmore test. This is the step at which the claimant has the burden of demonstrating that “[t]he injury that would inure to the [relationship] by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation” (p. 527 (emphasis in original)).

[117] This means looking first at what injury is caused by disclosing the material and potentially the identity of the confidential source. The context for considering the particular harm in this case is the role of confidential sources generally in the responsible performance of the media’s role. In my view, those sources represent a significant and legitimate journalistic tool, and where reasonable, good faith efforts have been made to confirm the reliability of the information from those sources, their confidentiality ought to be protected.

[130] Where, as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgment and pause, it seems to me, before trespassing on the confidentiality which is the source of the relationship.

[131] Having identified what I see as demonstrable and profound injury to the journalist/source relationship resulting from disclosure of the documents and potentially the identity of the source in this case, the other side of the Wigmore balancing exercise requires consideration of the countervailing benefits of disclosure. For the reasons that follow, I see those benefits as ranging from speculative to negligible.

[139] Since X is under no obligation to respond to questions from the police, since the evidence is that X received the document from an anonymous source whose identity he/she did not know, and since the envelope in which X received the document is not the envelope in the National Post’s possession, the benefit to the forgery investigation of getting the documents is, at best, marginal. Based on all of this, it seems to me to be clear that X is in no position to provide any information of assistance in the investigation of the alleged forgery, even if he/she agreed to be questioned by the police.

[140] The only possible evidence the envelope could yield, and that only remotely, is the identity of X, not of the alleged forger. This would mean that the only purpose for learning the confidential source’s identity is to discover who had created this public and awkward controversy. Corporal Gallant’s Information to Obtain appears to confirm this purpose when he says:

… this investigation seeks to determine the identify [sic] of someone who has maliciously attempted to mislead the press with a view to the publication of false information. It is not intended to identify a person providing truthful information to a news outlet.

Curiosity about the identity of a confidential source may be understandable, but is never, by itself, an acceptable basis for interfering with freedom of the press (O’Neill v. Canada (Attorney General)(2006), 213 C.C.C. (3d) 389 (S.C.J.)).

[141] And that brings us to consider the seriousness of the crime at issue in this case, a factor that seems to me to be relevant in balancing the competing interests. As Professor Gora argues:

Have we solved or deterred important crimes that would not have been otherwise interdicted by law enforcement? Have journalists ever provided the smoking gun to help catch a killer or a terrorist, or just a leaker? . . . Has the gain to law enforcement been worth the loss to the First Amendment? A proper respect for the First Amendment requires that we at least ask these questions. [pp. 1420-21]

We must remember that what we are dealing with here is an alleged forgery. On a continuum of serious criminality, it strikes me as unhelpful to compare a possible forgery of a possible debt, as in our case, with the Paul Bernardo murder scenario the majority’s reasons invoke by relying on R. v. Murray (2000), 144 C.C.C. (3d) 289 (Ont. S.C.J.). The remote possibility of resolving the debt forgery is far from sufficiently significant to outweigh the public benefit in protecting a rigorously thorough and responsible press.

[142] So on one side of the balance we have the slightest possible benefit to an investigation of an alleged forgery, and on the other we have the far weightier injury to the press interests at stake in revealing X’s identity. Even if there is only a remote prospect of being able to identify X from the documents, the remoteness of this possibility hardly argues for disclosure, as the majority suggests. There may be no consequential harm to X, but neither will there be any consequential benefit to the investigation. This means that the harm and benefit of disclosure in this particular case is speculative at best. The major demonstrable harm, with no countervailing benefit, is to the ability of the press to carry out its public mandate.

[143] The fourth and final Wigmore criterion for protecting the confidentiality of Mr. McIntosh’s source has therefore been satisfied and the documents should not be disclosed.

As to procedure, Justice Abella agreed with the Post that the police had not exhausted alternative sources of information. He had not inquired into other members of Parliament. He had not examined the books of JAC Consultants prior to filing his request for a warrant. He did not take note of problems with some of the corroborating documents provided by the Bank, including comparing suppliers lists which didn’t correspond, one of which was missing the page on which in alphabetical order JAC Consultants would have appeared. And he did not draw to the judge’s attention that the document in question came from a confidential source, though a letter in the voluminous background material to the Information to Obtain the search warrant alluded to it.

[155] It seems logical to me that given the inherent legal complexities in authorizing a search warrant against the media, any problems with the Information to Obtain should be canvassed prior to deciding whether to issue the warrant. The National Post lost the opportunity to make timely submissions not only on the confidential nature of the source, but also about the deficiencies in the information. Taken together, the information elicited through cross-examination might well have resulted in the search warrant not being issued at all.

[156] The media will always be in the best position to provide relevant information about the particular context, including whether a confidential relationship is at stake. As a general rule, therefore, it is entitled to notice of a request for a search warrant unless there are exceptional and urgent circumstances justifying an ex parte hearing.

[157] Here there were no such circumstances…

For the Ontario Court of Appeal ruling, see R. v. National Post OCA