The Lawyers Weekly - May 21, 2010

Confidential
Continued From Page 1

Post’s editorial board described the ruling as “bittersweet” for press freedom and called for the adoption of media shield laws encoding the Wigmore criteria “with the crucial change that the burden of proof in the public-interest test be shifted to the government.

“The problem is that police and
prosecutors typically can put for-
ward a very clear rationale for
piercing the veil of confidentiality:
to solve a specific crime,” urged the
National Post. “On the other side
of the coin, journalists rely on the
far more abstract—but no less
important—principles of a free
press, an educated citizenry and an
accountable government.”
Brendan Crawley, a spokesper-
son for the respondent Ontario
Crown, told The Lawyers Weekly
“this decision means that the police
may execute the original search
warrant, and that the assistance
order, directing the National Post
to assist in locating the documents,
must be complied with. The execu-
tion of the warrant and assistance
order rests with the RCMP.”
Despite the appeal’s outcome,
the judgment is more positive
than negative, suggests Toronto’s
Brian MacLeod Rogers, co-coun-
sel with Iain MacKinnon for the
coalition of 11 media organiza-
tions who intervened in the
appeal, including the Canadian
Newspaper Association, AD
IDEM/Canadian Media Lawyers
Association, and the Canadian
Association of Journalists.

“The positive is obviously the
recognition of the importance of
protecting confidential sources,”
Rogers told The Lawyers Weekly.
“They clearly heard the mes-
sage…[that] just about any story
of real significance has had its
beginning in a confidential
source at some stage. Therefore,
it is puzzling why the court seems
unwilling to acknowledge that a
constitutional right is affected
when the state wants to seize evi-
dence from a newsroom that
could reveal such a source.”
The judgment requires ex
parte search warrants to contain
terms protecting the media’s spe-
cial position and permitting the
media “ample time and opportu-
nity” to mount a court challenge.

“That shows the seriousness with which they were taking this issue,” Rogers suggested.

Justice Binnie’s judgment builds on the Supreme Court’s recognition in 1991 that the Charter-guaranteed freedom to publish the news necessarily involves the freedom to gather the news.

“We should likewise recognize in this case the further step that an important element in the news-gathering function (especially in the area of investigative journalism) is the ability of the media to make use of confidential sources,” Justice Binnie wrote.

“…journalists rely on the far more abstract — but no less important — principles of a free press, an educated citizenry and an accountable government.

“The appellants and their expert
witnesses make a convincing 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 less-
ened to the public detriment.
Viewed in this light, the law should,
and does, accept that in some situ-
ations the public interest in pro-
tecting the secret source from dis-
closure outweighs other competing
public interests—including crimi-
nal investigations. In those cir-
cumstances the courts will recog-
nize an immunity against
disclosure of sources to whom con-
fidentiality has been promised.”
However, Justice Binnie
rejected the argument of the
intervener Canadian Civil Liber-
ties Association that journalists
should be constitutionally pro-
tected from being compelled to
disclose their secret sources,
except if the Crown demonstrates
an overriding public interest in
the particular circumstances.

Some may see El Djebena as a revolutionary hero

Miller
Continued From Page 5

Some of the film’s enthusiasts,
including this one, have left the
theatre a little anxious that
younger viewers could see El
Djebena as a revolutionary hero,
a rebel with a survivalist cause,
violently exploiting the culture
that has made him a scarified
outsider. This romantic, tribalist
tendency seems inherent in the
human condition, in conventional
society and the underworld both,
with our persisting holy wars and
their insistent, self-righteous def-
initions of “holy.” ;

Writer and freelance translator Jeffrey Miller’s latest books are a series of comic novels — Murder at Osgoode Hall, Murder’s Out of Tune, Murder on the Rebound — set in Toronto’s legal community. He is also an adjunct professor in the law faculty at the University of Western Ontario.

protection of their secret source(s)
outweighs the public interest in the
production of the physical evidence
of the alleged crimes.”
Weighing the same consider-
ations, Justice Rosalie Abella
arrived at the opposite conclusion.
“In this case, the state seeks to
obtain evidence that is of only ques-
tionable assistance in connection
with a crime of moderate serious-
ness,” she reasoned. “It is informa-
tion that could, theoretically, iden-
tify a journalist’s confidential
source, a person who may not even
be in a position to provide informa-
tion 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.”
McIntosh was investigating in

2001 whether then-Prime Minister Jean Chrétien had intervened in a loan application to the Business Development Bank of Canada (BDC) from a hotel in Chrétien’s riding that allegedly owed a debt to his family investment company. The BDC and Chrétien denounced as a fake the loan document McIntosh obtained from a trusted source. That source said he received the document anonymously in the mail, and passed it on to McIntosh, believing it to be genuine. The RCMP sought to test the document for DNA, fingerprints, or other information that might help identify the alleged forger. ;

Reasons: R. v. National Post, [2010] S.C.J. No. 16.

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