Canada High Court Rejects Constitutional Reporter's Privilege

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No constitutional provision exists to shield journalists from having to divulge confidential sources to authorities engaged in police investigations, the Supreme Court of Canada has ruled in an 8-1 decision.

The High Court upheld a 2008 ruling by the Ontario Court of Appeal that rejected a reporter's privilege claim and ordered the National Post to surrender a document to police, reversing the Ontario Superior Court, which had quashed the search warrant for the information involving a land deal by former Prime Minister Jean Chretien.

Nowhere to be found in the freedom of expression guaranteed by the Charter of Rights is a special constitutional privilege for journalists, the Supreme Court held.  With the proliferation of the news media and the absence of uniform industry guidelines governing the handling of news sources, the High Court ruled that granting constitutional immunity to the press would impede law enforcement and jeopardize constitutional values, such as privacy.

The news wasn't all bad for Canadian journalists.  Writing for the majority, Justice Ian Binnie said courts should "strive to uphold the special position of the media and protect the media's secret sources where such protection is in the public interest."  The Supreme Court articulated the possibility of shielding confidential sources on a case-by-case evaluation, depending on factors such as the severity of the underlying crime being investigated, the relevance and value of the confidential information being sought by authorities, and "the public interest in respecting the journalist's promise of confidentiality."

Small steps, perhaps, but moving closer to the ad hoc test set forth by the U.S. Supreme Court in Branzburg v. Hayes, 408 U.S. 665 (1972),  which recognized a limited journalist's privilege that could be overcome by a showing that the shielded information was relevant, vital to the case and unavailable elsewhere. Justice Rosalie Abella dissented from the opinion of her fellow Canadian justices, noting that confidential sources are critical to the "responsible performance of the media's role."