March 17, 2008
St. Elizabeth Home Society v. Hamilton (City)
March 17, 2008
The Ontario Court of Appeal allowed the appeal of Ken Peters, a reporter with the Hamilton Spectator, setting aside his citation for contempt for refusing, at a civil trial, to answer questions that would identify his confidential source. Justice Sharpe, writing for the court, reviewed the importance of confidential sources to journalists, and incorporated Dagenais/Charter principles into both the Wigmore analysis of “privilege” and the court’s consideration of contempt. It’s best to quote directly from the judgment, which was succinctly written and promises to be very useful.
Protection of Journalists’ Confidential Sources
 Before considering the specific issues I have identified, I believe that it will be helpful to place those issues in their proper legal context by examining the law relating to the protection of journalists’ confidential sources.
 To obtain controversial information, a journalist may have to promise confidentiality to his or her source. In exchange for giving the information, the confidential source gains the right to insist that the journalist maintain confidentiality. However, a right of confidentiality, by itself, is not sufficient to protect against compelled disclosure should the confidential information be required in a court of law or other legal proceeding.
 In some situations of confidentiality—most notably communications between solicitor and client—the public interest in protecting the integrity of the relationship is so strong that the common law provides for a blanket or class privilege that shields all confidential information from disclosure. However, for most relationships—doctor-patient, priest-penitent, journalist-informant—the interest in confidentiality must be balanced against the interest in the proper administration of justice, and claims to privilege are resolved on a case-by-case basis.
 In R. v. McClure,  1 S.C.R. 445 at para. 29, the Supreme Court of Canada recognized that where a journalist can show that his or her relationship with a confidential source meets a four-part test—drawn from J.H. Wigmore, Evidence in Trials at Common Law, vol. 8 at 527 (J.T. McNaughton rev. 1961), and known as the “Wigmore criteria”—the relationship will enjoy the protection of privilege.
 The four criteria are:
- The communications must originate in a confidence that they will not be disclosed.
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
- The relation must be one which in the opinion of the community ought to be sedulously fostered.
- The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
Charter Rights and Values
 Freedom of expression and freedom of the media, protected by s. 2(b) of the Charter, have a direct bearing on a journalist’s claim to confidentiality. The media has a vital role in gathering and disseminating information in a free and democratic society and, as the Supreme Court of Canada held in Canadian Broadcasting Corporation v. New Brunswick (Attorney General) (1996), 139 D.L.R. (4th) 385 at para. 26, “measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press.” Canadian courts have recognized that journalist-informant confidentiality is important for effective news gathering. In Canadian Broadcast Corporation v. Lessard,  3 S.C.R. 421 at 430, La Forest J. stated:
I have little doubt … that the gathering of information could in many circumstances be seriously inhibited if government had too ready access to information in the hands of the media. That someone might be deterred from providing information to a journalist because his or her identity could be revealed seems to me to be self-evident. As Stewart J. (dissenting) stated in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), at p. 572:
It requires no blind leap of faith to understand that a person who gives information to a journalist only on condition that his identity will not be revealed will be less likely to give that information if he knows that, despite the journalist’s assurance, his identity may in fact be disclosed.
 Although dissenting in the result, McLachlin J. expressed similar views as to the importance of journalist-informant confidentiality at p. 452:
[C]onfidential sources of information may be fearful of speaking to the press, and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities.
 In Goodwin v. United Kingdom (1996), 22 E.H.R.R. 123 at para. 39, the European Court of Human Rights, interpreting the protection of freedom of expression in Article 10 of the European Convention on Human Rights, recognized that the “[p]rotection of journalistic sources is one of the basic conditions for press freedom” and that if sources are not protected from disclosure, they “may be deterred from assisting the press in informing the public on matters of public interest.” The result, according to the court, would be that “the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.”
 In the light of these authorities, I am unable to accept the submission of the Attorney General for Ontario urging us to decide this case without reference to the Charter. To understand fully the rules relating to journalist-informant confidentiality and the proper application of the law of contempt, I find it helpful—indeed necessary—to consider the import of the constitutionally guaranteed rights of freedom of expression and freedom of the media. I fail to see any reason to ignore this vital component of the appellant’s case that informs the procedural rights to which he is entitled. In my view, there can be no doubt that when applying the four-part Wigmore test to journalist-informant confidentiality and assessing the weight to be given to protecting confidentiality, courts must take into account relevant Charter values, even though the Charter does not directly apply: see R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.,  2 S.C.R. 573; Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835; R. v. The National Post, 2008 ONCA 139 at para. 74; A.(M.) Ryan,  1 S.C.R. 157 at para. 30.
 I am also unable to accept the submission of the Attorney General for Ontario that we should exclude consideration of the Charter on the ground that there is insufficient evidence to support the claim that disclosing the identity of the source would have a “chilling effect” on journalists’ sources and the gathering of news. As I have noted, there was some evidence to this effect provided at the show cause hearing by the appellant’s editor and the expert witness. For the following reasons, it is my view that no more was required.
 Courts routinely craft legal rules without the need for elaborate empirical evidence. They instead employ their judgment as to the likely impact rules will have on human behaviour, particularly where the issue is encouraging the free flow of information. The “chilling effect” of the common law of defamation has been recognized by this court and other courts around the common law world without empirical evidence: see Cusson v. Quan (2007), 87 O.R. (3d) 241 (C.A.) at para. 83. The entire law of solicitor-client privilege is built upon the empirically unproven yet surely sound judgment that a client not given an iron-clad guarantee of confidentiality will tend to be unwilling to disclose all the relevant facts to his or her lawyer and will therefore be unable to secure proper legal advice: R. v. McClure, supra at para. 33. The rule that jury deliberations must remain secret is based upon the empirically unproven yet surely sound judgment that confidentiality promotes among jurors candour, full and frank debate, and the free exchange of all views without fear of exposure to public ridicule: see R. v. Pan; R. v. Sawyer,  2 S.C.R. 344 at para. 50. Informer privilege rests upon the empirically unproven yet surely sound judgment that its protection “encourages cooperation with the criminal justice system for future potential informers”: Named Person v. Vancouver Sun Re Application to Proceed In Camera, 2007 SCC 43 at para. 16.
 The chilling effect of disclosing journalists’ sources was recognized by La Forest and McLachlin JJ. in Canada Broadcasting Corporation v. Lessard, supra, by the European Court of Human Rights in Goodwin v. United Kingdom, supra, and by this court in R. v. The National Post, supra, at paras. 89-96. Similarly, in Ashworth Hospital Authority v. MGN Ltd.,  4 All E.R. 193 at para. 61, the House of Lords stated that routinely ordering journalists to disclose their sources would cause the sources to “dry up” and hinder journalists’ news gathering capacities to the detriment of the public:
The fact is that information which should be placed in the public domain is frequently made available to the press by individuals who would lack the courage to provide the information if they thought there was a risk of their identity being disclosed. The fact that journalists’ sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public. It is for this reason that it is well established now that the courts will normally protect journalists’ sources from identification.
 In my view, it is sufficiently apparent that the likely effect of revealing a journalist’s confidential source will be to discourage from coming forward other potential sources who, for whatever reason, need to conceal their identity.
 I do not read Moysa v. Alberta (Labour Relations Board),  1 S.C.R. 1572, as precluding me from reaching this conclusion in the absence of elaborate empirical evidence. That case involved the question of whether a journalist could be compelled to testify before the Alberta Labour Relations Board. While the journalist raised the issue of confidential sources, it is clear from Sopinka J.’s judgment, at p. 1579, that the primary focus of the questions related to information the journalist gave to company officials. Sopinka J. held that the appeal could be resolved without dealing with the broad constitutional question of the protection of confidential sources under s. 2(b) of the Charter. It was in that context that Sopinka J. stated that evidence would be required to demonstrate “that compelling journalists to testify before bodies such as the Labour Relations Board would detrimentally affect journalists’ ability to gather information”: p. 1581. I see no reason to extend that statement beyond the specific circumstances of Moysa and instead would follow Canada Broadcasting Corporation v. Lessard, Goodwin v. United Kingdom, and Ashworth Hospital Authority v. MGN Ltd., which appear to me to deal more directly with the specific issue of journalists’ sources.
The court found that a finding of contempt should be a “last resort”. In this case, the trial judge used the contempt power too quickly, and applied it when it wasn’t necessary to do justice in the case before him.
 This restrained approach to the use of contempt is particularly apt where journalist-informant confidentiality is at stake. As Saunders J. put it in Crown Trust Co. v. Rosenberg,  O.J. No. 511 (H.C.J.) at para. 6, the court should take steps to respect journalist-informant confidentiality “as much as possible.” A rigid or categorical approach is to be avoided. A court should instead prefer to “proceed carefully and in a step-by-step fashion … in the interest of preserving the confidentiality of the sources if it is at all possible to do so”: id. at para. 7.
 To these legal considerations I would add a practical concern. Precipitous resort to the contempt power may be in the end counter-productive. By raising the stakes and presenting the journalist with an immediate all-or-nothing choice, there is a risk that the court’s actions will foreclose the exploration of alternative means of securing the information. This does not assist the litigant who seeks the information and runs the risk of making a martyr of the defiant journalist, all to the detriment of the integrity of the court and the administration of justice.
In the end, however, the ultimate result in the case was less than completely satisfying. As a practical matter, the journalist’s source was not protected. The pressure on the journalist while he awaited his fate resulted in the source revealing himself.