Do Canadian journalists need the ability to protect confidential sources from disclosure? This issue will be considered next year when the Supreme Court of Canada hears the appeal by the National Post in the fight to quash a search warrant and an assistance order issued to compel the newspaper to produce a document and the envelope in which it was delivered for forensic testing.
The testing is intended to identify the person who sent the document and then perhaps the source of the document. The document is said to be a forgery of a Business Development Bank of Canada loan authorization for a hotel.
This was no ordinary hotel however. This hotel was at the centre of the Shawinigate scandal that threatened to bring down then prime minister Jean Chrétien’s government.
Before Chrétien became leader of the Liberal Party he owned an interest in a hotel and an adjacent golf course near Shawinigan, Que. After becoming Liberal leader but before becoming prime minister, he sold his interest in the hotel.
In 1993, after becoming prime minister, he sold his interest in the golf course but the purchaser defaulted and didn’t pay, resulting in Chrétien selling his golf course interest a second time to another purchaser in 1999.
In the meantime, in 1996 the hotel owner, Yvon Duhaime, a man with a criminal record, applied to the BDBC, a federal Crown Corporation, for a $2 million loan to expand the hotel. Chrétien, then prime minister, phoned and met BDBC president François Beaudoin to discuss the loan. The BDBC turned down the loan as being too risky.
In 1997, the BDBC later approved a smaller $615,000 loan after Chrétien, still prime minister, again spoke with Beaudoin. If Chrétien had attempted to convince the BDBC to lend money to assist the hotel it could have been seen as a conflict of interest as benefiting Chrétien in respect of the adjacent golf course.
But hadn’t Chrétien sold the golf course? Well, he did but he hadn’t been paid, and he had a right to re-sell his interest in the golf course which he did in 1999, so arguably there was an indirect benefit. Chrétien says he did nothing wrong in lobbying the BDBC and that he was only doing his job as a member of Parliament for his riding.
As he said, “[i]t’s the usual operation. You call who you know.” The difficulty for Chrétien is that he had repeatedly denied having had any involvement with the loan which he claimed was routine until confronted with evidence to the contrary by National Post writer Andrew McIntosh.
The BDBC loan authorization document, if genuine, would have established that Chrétien had benefited from the loan. The document, however, was declared a forgery, hence the attempts to get the document and envelope for forensic testing with the goal of finding and charging the forger.
Senior Justice Mary Lou Benotto of the Superior Court of Justice quashed the warrant and assistance order on various grounds.
Most importantly she concluded that the Wigmore criteria for privilege had been met on the “unique” facts of the case. There was a confidential relationship between the source and the reporter. The source was promised confidentiality.
The document was not required for the defence of an accused but rather merely to further an investigation. Production of the document would impair freedom of expression and “minimally, if at all, advance the investigation.”
The Ontario Court of Appeal saw it differently. They reversed Benotto and ordered the National Post editor to give the RCMP the document and envelope.
While the OCA stated that in appropriate circumstances a claim of journalist-confidential source privilege might succeed, in this case, the law enforcement interest in disclosure defeated any privilege claim.
What was the law enforcement interest? Testing of the envelope might reveal a potential crime or “possible evidence of a crime.” That’s an extremely low threshold and I welcome the appeal to the SCC.
Requiring the document and envelope to be produced would serve no great public interest in light of Chrétien’s prevarications involving the loan.
There was no real risk that the forged document would have forced Chrétien from office. Forcing production of the document and envelope might make other potential sources less likely to pass on valuable information to journalists.
I don’t, however, believe that journalists need a blanket shield law. There is no need to create a new form of privilege or any blanket privilege for journalists. There is too much of a risk of abuse in having a blanket privilege and miscarriages of justice could result.
I favour Benotto’s approach of weighing the factors on a case-by-case basis to determine if production of a document or forced disclosure of a source would advance the interests of justice sufficiently so as to justify an impairment of freedom of the press.
Some of the factors the court should be looking at include: what efforts have been made to obtain the information from non-media sources; is the disclosure essential for the advancement of the interests of justice; might there be a miscarriage of justice if the information is not disclosed.
Further, the “privilege” should be limited so that it applies only to governmental activities or significant matters of public interest. Finally, perhaps if our access to information laws worked the way they were intended, journalists might not need to depend on those pesky brown paper envelopes sent by confidential or anonymous sources.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
