On May 7, 2010, the Supreme Court of Canada rendered a historic ruling concerning the ability of journalists to protect their confidential sources. The matter had been in the courts for almost 10 years and concerns former Prime Minister Jean Chretien and the scandal that has become known as “Shawinigate”.
The Shawinigan Affair
Prior to becoming prime minister in 1993, Jean Chretien and partners owned two pieces of property in the Shawinigan area of Quebec. One was a hotel, the other a golf course.
Chretien sold properties; one before he became PM and one shortly after assuming office. But there were problems with the purchaser of the golf course and as a result, Chretien did not get paid fully until 1999. It could be argued that until such time as he received his money in full, he had some “interest” in the properties.
During 1996 and 1997, the then prime minister had contact with the president of the Business Development Bank of Canada. He had attempted to secure a government loan for the man who purchased his interest in the hotel. Chretien’s position was that he was acting as a Member of Parliament and was just attempting to help out a constituent.
In April 2001, a person who remains unknown and is referred to in the court proceedings as “X”, provided an envelope containing documents to reporter Andrew McIntosh who was then with the National Post. McIntosh was only given the documents after he guaranteed he would not reveal X’s identity. The documents tended to show that Chretien had indeed been in a conflict of interest regarding the properties that he formerly owned.
McIntosh sent copies of what he received to the bank, Chretien and Chretien’s lawyer. All three of the parties stated that the documents were forgeries and the bank reported the matter to the RCMP who then began an investigation.
RCMP Attempted to Get Documentation from Confidential Source
McIntosh refused to hand over the documents in his possession to the RCMP on the grounds that he was protecting his source. So the police obtained a search warrant and an assistance order that required Post editor Matthew Fraser to assist them in finding the documents.
The Post appealed that order and an Ontario Superior Court justice quashed both the search warrant and the assistance order. She found that it was only speculative that the RCMP having physical possession of the originals would further the investigation. The police appealed her finding and in 2008, the Ontario Court of Appeal allowed the appeal and reinstated the search warrant and the assistance order. The newspaper, Fraser and McIntosh then appealed to the Supreme Court of Canada.
Right of Journalists to Protect Sources is not Absolute
The Supreme Court of Canada found that the public has a right to be informed of matters of public importance. In order to keep the public properly informed, journalists must rely on sources, many of whom will only come forward if their identities can be protected. But the court also found that there are competing public interests that can be compelling and the justices held that the right of a journalist to refuse to reveal confidential sources is not absolute.
In this case, the other public interest was the investigation of a serious crime. The court held that the envelope and contents that were given to McIntosh was physical evidence that related to this crime.
The court used a four-pronged test, the so called “Wigmore criteria” to determine if the journalist had a right to refuse to disclose the confidential information that he had. These four criteria are; was there an agreement regarding confidentiality, was that confidentiality essential to the relationship between McIntosh and X, was the relationship entered into for the public good, and did the protection of the confidential source outweigh the public interest in having the police determine the truth.
Eight of the nine justices on the court found that the first three conditions were met but not the fourth. They held that the ability of the police to do a forensic analysis of the documents received by McIntosh outweighed the X’s right to have his identity protected.
Justice Abella, who dissented, agreed with the majority that the right to confidentiality was not absolute and that that right had to be determined on a case to case basis. However she found that all four of the Wigmore criteria had been met in this case. Like the judge who initially issued the search warrant and assistance order, Justice Abella found that the effect that the release would have on the police investigation ranged from “speculative to negligible”.
In light of the top court’s ruling, journalists can never give an absolute guarantee of confidentiality to a source.
Sources:
Arthur Weinreb - Weinreb is an author, associate editor and columnist with Canada Free Press and the Canadian Affairs Feature Writer for Suite 101.
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