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Public interest may
require shield for
media’s secret sources

Unilingual SCC
judges just don’t get it,
argues this law prof

PAGE 5

CRISTIN SCHMITZ OTTAWA

BAD FAITH

Journalists do not have a blanket constitutional right or a common law class privilege to refuse to divulge their secret sources in court proceedings. But they can contend for a “journalist-confidential source” privilege on a case-by-case basis, the Supreme Court has ruled.

On May 7, the high court for the first time set out a legal framework for determining if, and when, journalists may be exempted from being compelled by a court to disclose to police or other state actors information that could identify persons who were guaranteed confidentiality by the media.

All nine judges ruled that a judge may not compel a journalist to disclose a secret source’s identity if that journalist is able to demonstrate, on a balance of probabilities, that the public’s interest in shielding the source’s identity outweighs any competing social priorities, such as the investigation of crime or the search for truth in court.

Justice Ian Binnie said partial or total “journalist-confidential source” privilege may be claimed, in particular cases, if the journalist can satisfy four criteria adapted from the Wigmore test for establishing privilege at common law. The burden of proof remains wholly on the journalist, he said.

A court will therefore respect a journalist’s promise of confidentiality if the journalist discharges the onus of persuading the judge that:

How to win damages
for bad faith conduct
by employers

PAGE 9

WAR ON TERROR
Individuals wrongfully
accused of terrorism
can’t get redress

PAGE 15

EDUCATION

Brian MacLeod Rogers was co-counsel for a coalition of intervenor media organizations at the SCC. He said just about any story of real significance has had its beginning in a confidential source.

PAUL LAWRENCE FOR THE LAWYERS WEEKLY

(1) the communication originated
in the confidence that the infor-
mant’s identity would not be dis-
closed; ( 2) the confidence was
essential to the relationship in
which the confidence arose; ( 3) the
relationship is one which should be
diligently, deliberately and con-
sciously fostered for the public
good; and ( 4) “the public interest
in protecting the identity of the
informant from disclosure out-
weighs the public interest in get-
ting at the truth.”
The Supreme Court went on to
divide 8-1 over the outcome of R. v.
National Post (Justice Abella dis-
senting), with the majority affirm-
ing the 2008 decision of the
Ontario Court of Appeal to uphold
a 2002 search warrant and assis-
tance order. The impugned orders
authorized the RCMP to search
and seize from the National Post
and its then-investigative reporter,
Andrew McIntosh, what are
alleged to be forged bank records
that McIntosh received from a
source whose identity he had
pledged to protect. The majority
also upheld an order requiring the
Post’s then-editor-in-chief to assist
in obtaining the records related to
the so-called “Shawinigate” affair.

Continuing legal
education market

PAGE 22

PREVENTION
Lawyers helping clients
prevent legal issues

PAGE 23

‘Strategic lawsuit against public participation’ ruling first in Canada

National organization
approves model act
to deter abusive, or
‘SLAPP,’ lawsuits

LUIS MILLAN MONTREAL

Barely three weeks after a Que-
bec judge rendered a landmark
ruling that dismissed a $150,000
action after it was held to be a stra-
tegic lawsuit against public par-
ticipation, or “SLAPP”, a national
organization approved a model act
aimed at reinforcing existing rem-
edies to deter abusive lawsuits.

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