International Law

R. v. National Post

In an important case examining the scope of reporter-source privilege, the Ontario Court of Appeal orders an investigative journalist to give it up. (For a quick overview, the Star has a story.)

Investigative reporter Andrew McIntosh had in his possession an apparently forged loan document purporting to show the owner of a Quebec golf club owed money to Prime Minister Jean Chretien’s holding company and planned to repay it with a loan from the Business Development Bank of Canada. If true, the document would reveal “a serious conflict of interest” on the part of the Prime Minister. The RCMP wanted a look at the document. An earlier ruling said they couldn’t. The Court of Appeal overruled.

Therefore, in weighing the competing interests, as well as addressing the considerations favouring confidentiality, the court must also address the considerations ? both specific to the case and societal ? favouring disclosure. Unfortunately, the reviewing judge did not do so. We therefore will set them out here. As will become evident, the considerations favouring disclosure of the document and the envelope sharply outweigh those favouring confidentiality. Indeed, as we view the case, the law enforcement interest in disclosure is overwhelming.

The document and the envelope are not merely pieces of evidence tending to show that a crime has been committed. They are the very actus reus of the alleged crime. For the purpose of demonstrating that a crime was committed ? the crime of uttering a forged document to the National Post ? evidence is not available from another source. Gallant so testified in the information to obtain, and the respondents did not suggest otherwise. Moreover, nothing in the amplified record points to any other avenue of investigation of this discrete offence. Therefore, without the document and the envelope and the ability to conduct forensic testing of them there can be no further investigation, no ability to get at the truth.

We do not diminish the press? important role in uncovering and reporting an alleged wrongdoing. But in our society it is the police who are charged with the crucial role of investigating and prosecuting crime. And, to paraphrase what White J. said in Branzburg v. Hayes at p. 692, it is not necessarily better to write about crime than to do something about it.

And this is no ordinary crime. This is an especially grave and heinous crime. Assuming the document was forged, either the forger or some other person sent it to the National Post to create controversy and undermine the authority of a sitting Prime Minister of Canada. The National Post itself admitted that if the document was forged, it would be evidence of a criminal conspiracy to force a duly elected Prime Minister from office.

Moreover, while the law enforcement interest is overwhelming, the press? legitimate interest in confidentiality is attenuated. Although, in pursuit of their constitutional right to gather and disseminate the news, journalists are entitled to protect their sources, that entitlement loses much of its force when journalists use it to protect the identity of a potential criminal or to conceal possible evidence of a crime. The press, like any one else, should have ?an interest in seeing that crimes are investigated and prosecuted?: see Lessard at 535. Society expects as much. Instead of furthering that interest, however, the respondents are shielding a potential wrongdoer from prosecution for a serious crime by refusing to deliver to the authorities the items representing the actus reus of the offence.

Full post as published by Criminal Review on February 29, 2008 (boomark / email).