Media's confidential sources deserve protection, but that
protection is not absolute. The Supreme Court of Canada recently
held that the need for confidentiality must be balanced with other
societal interests. The Supreme Court held that 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." However, there is no blanket immunity.
At the heart of the case was a "plain brown envelope"
provided to a National Post journalist by a confidential
source regarding the "Shawinigate" scandal. The scandal
involved a Business Development Bank of Canada loan to the Auberge
Grand-Mère in Shawinigan, Quebec, the home town (and
political riding) of former prime minister Jean Chrétien.
The envelope contained a document that could have taken the scandal
much further, had it not been a forgery.
The police obtained a search warrant to seize the forged
document from the National Post. The Court's recent
decision ruled on the Post's application to quash the warrant.
The Post was trying to protect its journalist's confidential
source, relying on the Charter right of freedom of
expression, which includes freedom of the press.
In its reasons, the Court rejected a blanket rule protecting
journalistic sources. Instead, it adopted a balancing approach, in
which a court must weigh the importance of the
journalist–source relationship against "any
countervailing public interest such as the investigation of a
particular crime (or national security, or public safety or some
other public good)." While the Court stated that "[t]he
exercise is essentially one of common sense and good
judgment," it also held that there were a number of different
factors that ought to be considered and weighed against the public
interest in respecting the journalist's promise of
confidentiality. These factors include the nature and seriousness
of the offence under investigation, the importance and type of the
evidence sought and the underlying purpose of the
Although the Court ultimately found against the National
Post and upheld the search warrant (in an 8-1 decision), it
also confirmed the importance of journalistic sources to the public
interest in free expression guaranteed by the Charter.
The case is important for any media who are considering making a
promise of confidentiality to their sources. On the one hand, it is
a helpful case, reiterating the obligation of the courts to protect
those sources in the right circumstances. However, it also
demonstrates that confidentiality, even if promised, cannot be
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