SUPREME
COURT OF CANADA
|
Citation:
Globe and Mail v. Canada (Attorney General),
2010 SCC 41, [2010] 2 S.C.R.
592
|
Date: 20101022
Docket: 33114,
33097, 32975,
|
Between:
Globe and Mail, a
division of CTVglobemedia Publishing Inc.
Appellant
and
Attorney General
of Canada and Groupe Polygone Éditeurs inc.
Respondents
‑ and ‑
Fédération
professionnelle des journalistes du Québec,
Ad IDEM/Canadian
Media Lawyers Association, Astral Media Radio Inc.,
Groupe TVA inc.,
La Presse, ltée, Médias Transcontinental inc.,
Canadian
Broadcasting Corporation and
Canadian Civil
Liberties Association
Interveners
and between:
Globe and Mail, a
division of CTVglobemedia Publishing Inc.
Appellant
and
Attorney General
of Canada and Groupe Polygone Éditeurs inc.
Respondents
‑ and ‑
Barreau du Québec,
Gesca Limitée, Joël‑Denis Bellavance
and Canadian Civil
Liberties Association
Interveners
and between:
Globe and Mail, a
division of CTVglobemedia Publishing Inc.
Appellant
and
Attorney General
of Canada and Groupe Polygone Éditeurs inc.
Respondents
‑ and ‑
Fédération
professionnelle des journalistes du Québec,
Ad IDEM/Canadian
Media Lawyers Association, Astral Media Radio Inc.
Groupe TVA inc.,
La Presse, ltée, Médias Transcontinental inc. and
Canadian
Broadcasting Corporation
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
|
Reasons for
Judgment:
(paras. 1 to 102)
|
LeBel J. (McLachlin C.J. and Binnie, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ. concurring)
|
______________________________
Globe and Mail v. Canada (Attorney General), 2010 SCC 41,
[2010] 2 S.C.R. 592
Globe and Mail, a division of CTVglobemedia Publishing Inc. Appellant
v.
Attorney
General of Canada and
Groupe Polygone Éditeurs inc. Respondents
and
Fédération professionnelle des
journalistes du Québec,
Ad
IDEM/Canadian Media Lawyers Association,
Astral Media
Radio Inc., Groupe TVA inc.,
La Presse
ltée, Médias Transcontinental inc.,
Canadian
Broadcasting Corporation and
Canadian Civil Liberties Association Interveners
‑ and ‑
Globe and Mail, a division of CTVglobemedia Publishing Inc. Appellant
v.
Attorney
General of Canada and
Groupe Polygone Éditeurs inc. Respondents
and
Barreau du Québec,
Gesca ltée,
Joël‑Denis Bellavance and
Canadian Civil Liberties Association Interveners
‑ and ‑
Globe and Mail, a division of CTVglobemedia Publishing Inc. Appellant
v.
Attorney
General of Canada and
Groupe Polygone Éditeurs inc. Respondents
and
Fédération professionnelle des
journalistes du Québec,
Ad
IDEM/Canadian Media Lawyers Association,
Astral Media
Radio Inc., Groupe TVA inc.,
La Presse
ltée, Médias Transcontinental inc.
and Canadian Broadcasting Corporation Interveners
Indexed as: Globe and Mail v. Canada (Attorney
General)
2010 SCC 41
File Nos.: 33114, 33097, 32975.
2009: October 21; 2010: October 22.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the
superior court of quebec and the court of appeal for quebec
Constitutional law — Canadian Charter — Human rights
— Quebec Charter of human rights and freedoms — Evidence — Journalist‑source
privilege — Freedom of expression — Access to information — Professional
secrecy — Newspaper journalist receiving information from confidential
unauthorized government source concerning company retained by federal government
under Sponsorship Program — Newspaper publishing information alleging misuse
and misdirection of public funds — Journalist compelled on cross‑examination
to answer questions possibly leading to identity of source — Newspaper
objecting — Whether relationship protected by class‑based
journalist‑source privilege — Whether basis for privilege constitutional
or quasi‑constitutional rooted in Canadian Charter and Quebec Charter
rights — Whether common law framework to recognize case‑by‑case
privilege relevant for civil litigation proceedings under Quebec law — Canadian
Charter of Rights and Freedoms, s. 2 (b) — Charter of human rights and
freedoms, R.S.Q., c. C‑12, ss. 3, 9, 44.
Constitutional law — Charter of Rights — Freedom of
expression — Publication ban — Newspaper journalist receiving information from
confidential unauthorized government source concerning company retained by
federal government under Sponsorship Program — Information published including
details about confidential settlement negotiations between government and
company — Court making order prohibiting journalist from reporting and
publishing further details concerning settlement negotiations — Whether order
having effect of limiting journalist’s freedom of expression rights under
Canadian Charter — Whether publication ban necessary to prevent serious risk to
proper administration of justice
— Whether salutary effects of publication ban outweigh deleterious
effects — Canadian Charter of Rights and Freedoms, s. 2 (b).
These three appeals have as their origin the litigation
flowing from what is known as the Sponsorship Scandal. In March 2005, the
Attorney General of Canada filed a motion in the Quebec Superior Court seeking
to recover the money paid by the federal government under the Sponsorship
Program. The proceedings were instituted against several of the companies and
individuals retained by the Program and implicated in the Scandal, including
Groupe Polygone. In response, Groupe Polygone advanced a defence of
prescription under the Civil Code of Québec. As the litigation
proceeded, and in support of its prescription defence, Groupe Polygone obtained
orders requiring that certain persons, including several federal government
employees, answer questions aimed at identifying the source of a journalist’s
information. Based primarily on information received from a confidential
unauthorized government source, L, a Globe and Mail journalist, had written a
series of articles about the Sponsorship Program, alleging the misuse and
misdirection of public funds. The Globe and Mail brought a revocation motion
in respect of the orders issued by the Superior Court judge, arguing that their
effect would be to breach journalist‑source privilege. L testified on
the motion and was cross‑examined by counsel for Groupe Polygone.
Counsel for the Globe and Mail objected to a number of questions posed to L, on
the basis that they were either irrelevant, or that his answering them would
lead to a breach of journalist‑source privilege. The judge refused to
recognize the existence of a journalist‑source privilege and the
objections were dismissed. Leave to appeal was denied by the Court of Appeal
(“journalist‑source privilege appeal”). Rather than have its journalist
answer the questions, the Globe and Mail sought to discontinue the revocation
proceedings. The judge refused to allow the discontinuance, and the Quebec
Court of Appeal dismissed the appeal (“discontinuance appeal”). Meanwhile,
during the hearing of the discontinuance proceedings, Groupe Polygone
complained about leaks dealing with the content of confidential settlement
negotiations in which it was engaged with the Attorney General, the details of
which were reported by L and published by the Globe and Mail. In response, and
on his own motion, the Superior Court judge made an order prohibiting L from
further reporting and publishing on the state of the negotiations. While the
Globe and Mail objected to what it insisted was a publication ban, and one
issued without the benefit of hearing from either party, the judge maintained
that the order was not a publication ban, providing no further written or oral
reasons for his decision. The Quebec Court of Appeal again rejected the Globe
and Mail’s application for leave to appeal (“publication ban appeal”).
In the journalist‑source privilege appeal in this
Court, the Globe and Mail argued that a class‑based journalist‑source
privilege is rooted in the Canadian Charter and the Quebec Charter.
In the alternative, it contended that the common law Wigmore doctrine to
establish privilege on a case‑by‑case basis, but modified to
account for the civil law tradition, is applicable. The Globe and Mail also
challenged the order prohibiting the publication of information related to the
settlement negotiations, as well as the order denying the discontinuance.
Held: The
journalist‑source privilege appeal should be allowed and the matter
remitted to the Superior Court of Quebec for consideration in accordance with
the reasons for judgment. The publication ban appeal should be allowed and the
order prohibiting the publication of information relating to the settlement
negotiations quashed. The discontinuance appeal should be dismissed as moot.
There is no basis for recognizing a class‑based
constitutional or quasi‑constitutional journalist‑source privilege
under either the Canadian Charter or the Quebec Charter. For
reasons set out in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R.
477, and in particular the difficulty in defining such a heterogenous and ill‑defined
group of writers and speakers with the necessary degree of certainty, freedom
of expression under the Canadian Charter and the Quebec Charter cannot
constitute the basis for recognizing journalist‑source privilege.
Similarly, s. 44 of the Quebec Charter, which protects access to
information, does not broaden the scope of the right beyond what is defined by
the provision itself. While the s. 44 right can inform the protection of
the confidential relationship between journalists and their sources, it cannot
constitute the basis for recognizing the privilege. Finally, because
journalists are not bound to professional secrecy by law, s. 9 of the Quebec
Charter, which protects professional secrecy, cannot ground a quasi‑constitutional
right to the protection of media sources. There is, however, a basis in the
laws of Quebec for a journalist‑source privilege or an exemption from the
general obligation to give evidence in civil cases. Despite its common law
origins, the use of a Wigmore‑like framework to recognize the existence
of case‑by‑case privilege in the criminal law context is equally
relevant for civil litigation matters subject to the laws of Quebec;
recognition would result in consistency across the country, while preserving
the distinctive legal context under the Civil Code of Québec. This case‑by‑case
approach is consistent with the overarching principles set out in the Civil
Code, the Quebec Charter and the Canadian Charter , and
conforms with the law of evidence in Quebec as found in the Civil Code
and the Code of Civil Procedure. It is also sufficiently flexible to
take into account the variety of interests that may arise in any particular
case.
Therefore, under the proposed test, to require a
journalist to answer questions in a judicial proceeding that may disclose the
identity of a confidential source, the requesting party must demonstrate first
that the questions are relevant. If the questions are relevant, the court must
then consider the four Wigmore factors: (1) the relationship must
originate in a confidence that the source’s identity will not be disclosed;
(2) anonymity must be essential to the relationship in which the communication
arises; (3) the relationship must be one that should be sedulously
fostered in the public interest; and (4) the public interest served by
protecting the identity of the informant must outweigh the public interest in
getting at the truth. At the crucial fourth Wigmore factor, the court must
balance the importance of disclosure to the administration of justice, against
the public interest in maintaining journalist‑source confidentiality.
This balancing must be conducted in a context specific manner, having regard to
the particular demand for disclosure at issue. The considerations relevant at
the fourth Wigmore stage include: the stage of the proceeding when a claim of
privilege is raised; the centrality of the issue to the dispute; whether the journalist
is a party to the litigation, or simply a witness; whether the facts,
information or testimony are available by any other means; the degree of public
importance of the journalist’s story; and whether the story has been published
and therefore already in the public domain. In this case, the Superior Court
judge erred in concluding that it was preferable to compel L’s answers on cross‑examination.
L was entitled to have the questions put to him challenged for relevancy, and
his claim for privilege rigorously tested against the Wigmore criteria. In
particular, if the judge concluded that the first three factors favoured
disclosure, he was then required to ask whether, on balance, the public
interest in maintaining journalist‑source confidentiality outweighed the
importance of disclosure to the administration of justice. The public interest
here, is based largely on whether the questions would tend to reveal the
identity of L’s confidential source. Ultimately, these matters are for the
judge to determine, but in this case they were never considered because neither
party was permitted to make submissions or tender evidence on the issue.
With respect to the publication ban appeal, the Superior
Court’s order must be assessed for what it is: a court‑ordered
publication ban which had the effect of limiting L’s s. 2 (b)
freedom of expression Canadian Charter rights. The Superior Court judge
therefore erred in not applying the Dagenais/Mentuck framework. The
order was made without notice, without application and without the benefit of
formal submissions from either party. By proceeding in this manner, in a case
where there was no suggestion of urgency or delay inherent in hearing
submissions that would prejudice either party, the Superior Court violated one
of the fundamental rules of the adversarial process: it denied the parties an
opportunity to be heard before deciding an issue that affected their rights.
This, in itself, is sufficient to allow the appeal. Considering the publication
ban on its merits, maintaining the confidentiality of settlement negotiations
is a public policy goal of the utmost importance. However, confidentiality
undertakings bind only the parties and their agents. Neither L nor the Globe
and Mail was a party to the settlement negotiations. The wrong was committed
by the government source who provided L with the information. Nothing in the
record suggests that L was anything other than a beneficiary of the source’s
desire to breach confidentiality. L was not required to ensure that the
information was provided to him without the source breaching any of her legal
obligations and he was under no obligation to act as her legal adviser. In any
event, Groupe Polygone offered no tangible proof that its ability to effectively
engage in settlement negotiations with the government has been irreparably
harmed, nor has it offered any evidence of a serious risk to the administration
of justice. At the time L’s article was published, the fact that the parties
were engaged in settlement negotiations was already a matter of public record.
Even if the ban were necessary to prevent a serious risk to the administration
of justice, its salutary effects do not outweigh its deleterious effects which
are serious. Upholding the order would prevent the story from coming to light,
stifling the media’s exercise of their constitutionally mandated role to report
stories of public interest, such as one where the federal government is seeking
to recover a considerable amount of public money because of an alleged fraud
against a government program. Given the result in the journalist‑source
privilege and publication ban appeals, the discontinuance appeal is moot.
Cases Cited
Referred to: R.
v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; Gesca ltée v. Groupe
Polygone Éditeurs inc. (Malcom Média inc.), 2009 QCCA 1534, [2009] R.J.Q.
1951, rev’g 2009 QCCS 1624 (CanLII); Quebec (Commission des droits de la
personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27,
[2000] 1 S.C.R. 665; Doré v. Verdun (City), [1997] 2 S.C.R. 862; Lac
d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., 2001 SCC 51,
[2001] 2 S.C.R. 743; Gosselin v. Quebec (Attorney General), 2002 SCC 84,
[2002] 4 S.C.R. 429; Foster Wheeler Power Co. v. Société intermunicipale de
gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1
S.C.R. 456; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Société
d’énergie de la Baie James v. Lafarge Canada Inc., [1991] R.J.Q. 637; Boiler
Inspection and Insurance Company of Canada v. Corporation municipale de la
paroisse de St‑Louis de France, [1994] R.D.J. 95; Grenier v.
Arthur, [2001] R.J.Q. 674; Centre de réadaptation en déficience
intellectuelle de Québec v. Groupe TVA inc., [2005] R.J.Q. 2327; Drouin
v. La Presse ltée, [1999] R.J.Q. 3023; Tremblay v. Hamilton, [1995]
R.J.Q. 2440; Landry v. Southam Inc., 2002 CanLII 20587; Marks v.
Beyfus (1890), 25 Q.B.D. 494; D. v. National Society for the Prevention
of Cruelty to Children, [1978] A.C. 171; R. v. Gruenke, [1991] 3
S.C.R. 263; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R.
647; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89
O.R. (3d) 81; Charkaoui (Re), 2008 FC 61, [2009] 1 F.C.R. 507; Attorney‑General
v. Mulholland, [1963] 2 Q.B. 477; Re Pacific Press Ltd. and The Queen
(1977), 37 C.C.C. (2d) 487; Secretary of State for Defence v. Guardian
Newspapers Ltd., [1985] 1 A.C. 339; In re An Inquiry under the Company
Securities (Insider Dealing) Act 1985, [1988] 1 A.C. 660; Globe and Mail
v. Canada (Procureur général), 2008 QCCA 2516 (CanLII); Toronto Star
Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Kosko v.
Bijimine, 2006 QCCA 671 (CanLII); Waldridge v. Kennison (1794), 1
Esp. 143, 170 E.R. 306; Histed v. Law Society of Manitoba, 2005 MBCA
106, 195 Man. R. (2d) 224; Canadian Broadcasting Corp. v. Paul, 2001 FCA
93, 198 D.L.R. (4th) 633; Smith v. Daily Mail Publishing Co., 443 U.S.
97 (1979); Bartnicki v. Vopper, 532 U.S. 514 (2001); Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck,
2001 SCC 76, [2001] 3 S.C.R. 442; Vancouver Sun (Re), 2004 SCC 43,
[2004] 2 S.C.R. 332; Peat Marwick Thorne v. Canadian Broadcasting Corp.
(1991), 5 O.R. (3d) 747; Amherst (Town) v. Canadian Broadcasting Corp.
(1994), 133 N.S.R. (2d) 277; Canada (Canadian Transportation Accident
Investigation and Safety Board) v. Canadian Press, [2000] N.S.J.
No. 139 (QL); Calgary Regional Health Authority v. United Western
Communications Ltd., 1999 ABQB 516, 75 Alta. L.R. (3d) 326; K. v. K.
(E.), 2004 ABQB 847, 37 Alta. L.R. (4th) 118.
Statutes and Regulations Cited
Alberta Rules of Court,
Alta. Reg. 390/68, r. 173.
Canadian Charter of Rights and Freedoms, ss. 2 (b), 32 .
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 3, 4, 5, 9, 9.1, 44, 52.
Civil Code of Lower Canada, art. 1206.
Civil Code of Québec,
R.S.Q., c. C-1991, preliminary provision, arts. 3, 35, 36(2), 2803 to
2874.
Civil Procedure Rules
(Nova Scotia), rr. 10.13(4)(a), 10.14(4)(a), 10.16.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 20, 46, 151.14, 151.16,
151.21, 398.1.
Constitution Act, 1867,
s. 96 .
Professional Code,
R.S.Q., c. C‑26, Sch. I.
Queen’s Bench Rules,
Man. Reg. 553/88, rr. 49.06(1), (2), 50.01(9), (10).
Queen’s Bench Rules
(Saskatchewan), rr. 181(3), 191(14), (15).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 24.1.14, 49.06, 50.09, 50.10.
Supreme Court Civil Rules, B.C. Reg. 168/2009, rr. 9‑1(2), 9‑2(1), (3).
Authors Cited
Cross and Tapper on Evidence, 11th ed. by Colin Tapper. New York: Oxford University Press,
2007.
Ducharme, Léo. L’administration de la preuve,
3e éd. Montréal: Wilson & Lafleur, 2001.
Ducharme, Léo. Précis de la preuve, 6e
éd. Montréal: Wilson & Lafleur, 2005.
Jutras, Daniel. “Culture et droit processuel: le cas
du Québec” (2009), 54 McGill L.J. 273.
Leblanc, Daniel. Nom de code: MaChouette:
l’enquête sur le scandale des commandites. Outremont, Qué.: Libre
Expression, 2006.
Leblanc, Daniel. “Sponsorship firm moves to settle
with Ottawa”, The Globe and Mail, October 21, 2008, p. A11.
Québec. Assemblée nationale. Commission permanente
de la Justice. Étude du projet de loi no 50 — Loi concernant
les droits et les libertés de la personne. Journal des débats: Commissions
parlementaires, 3e sess., 30e lég., no 6,
22 janvier 1975, p. B‑322.
Quebec. Ministry of Justice. Justice Today,
by Jérôme Choquette. Québec: Ministry of Justice, 1975.
Royer, Jean‑Claude, et Sophie Lavallée. La
preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
Vallières, Nicole. “Le secret
professionnel inscrit dans la Charte des droits et libertés de la personne du
Québec” (1985), 26 C. de D. 1019.
[33114] APPEAL from an order of the Superior Court of
Quebec (de Grandpré J.) dismissing objections to evidence. Appeal
allowed.
[33097] APPEAL from a judgment of the Quebec Court of
Appeal (Pelletier, Doyon and Duval Hesler JJ.A.), 2009 QCCA 235, [2009]
J.Q. no 713 (QL), dismissing an application for leave to appeal
from an order of de Grandpré J. prohibiting the publication of
information. Appeal allowed.
[32975] APPEAL from a judgment of the Quebec Court of
Appeal (Otis, Forget and Côté JJ.A.), 2008 QCCA 2464, [2008] J.Q. no 13554
(QL), 2008 CarswellQue 12763, dismissing an application for leave to appeal
from an order of de Grandpré J. refusing to grant a discontinuance of
proceedings. Appeal dismissed.
William Brock, Guy
Du Pont, David Stolow and Brandon Wiener, for the appellant.
Claude Joyal, for the
respondent the Attorney General of Canada.
Patrick Girard, Louis P.
Bélanger, Q.C., and Frédéric Pierrestiger, for the
respondent Groupe Polygone Éditeurs inc.
Christian Leblanc,
Marc‑André Nadon and Chloé Latulippe, for the interveners
Fédération professionnelle des journalistes du Québec, Ad IDEM/Canadian Media
Lawyers Association, Astral Media Radio Inc., Groupe TVA inc., La Presse ltée,
Médias Transcontinental inc., the Canadian Broadcasting Corporation, Gesca ltée
and Joël‑Denis Bellavance.
Jamie Cameron, Christopher D.
Bredt and Cara F. Zwibel, for the intervener the Canadian Civil
Liberties Association.
Michel Paradis, François‑Olivier
Barbeau, Gaston Gauthier and Sylvie Champagne, for the
intervener Barreau du Québec.
The judgment of the Court was delivered by
LeBel J. —
I. Introduction
[1]
It is a general and well-accepted rule of evidence that witnesses who
are called to testify are obliged to answer the questions put to them, so long
as they are relevant. The Globe and Mail (“Globe and Mail”) seeks an
exception to this rule for the benefit of one of its journalists, Mr. Daniel
Leblanc, on the basis that his testimony would reveal the identity of a
confidential source and thereby infringe his s. 2 (b) rights under the Canadian
Charter of Rights and Freedoms . The Globe and Mail also asks this Court to
quash an order prohibiting it from publishing any information, however
obtained, regarding confidential settlement negotiations involving the
Government of Canada and Groupe Polygone Éditeurs inc.
[2]
These appeals all have as their origin the litigation flowing from what
is now known as the “Sponsorship Scandal”. More broadly, however, these appeals
raise questions concerning access to the information provided by sources to
journalists, and the confidentiality of their relationship, in the context of
civil litigation subject to the law of Quebec. While some of these questions
are analogous to those recently considered by this Court in R. v. National
Post, 2010 SCC 16, [2010] 1 S.C.R. 477, which also dealt with the
confidentiality of the journalist-source relationship, although in the context
of a criminal investigation, these appeals also require this Court to consider
the propriety of ordering a ban on the publication of settlement negotiations.
A related procedural issue, in respect of an attempted discontinuance of
procedures before the Superior Court of Quebec, is also before our Court in a
third appeal.
[3]
For the reasons that follow, the appeals dealing with the
confidentiality of the journalist-source relationship and the publication ban
are allowed. Because this result renders the discontinuance appeal moot, that
appeal is dismissed.
II. Source of the Litigation and Its
Procedural History
[4]
Following the results of the 1995 referendum on Quebec sovereignty, the
federal Cabinet created the Sponsorship Program (“Program”), which was designed
to counteract the sovereignty movement and increase the visibility of the
federal government in Quebec. Based primarily on information he received from
a confidential source — who later became known by the alias MaChouette — a
Globe and Mail journalist, Daniel Leblanc, wrote a series of articles on the
Program. Mr. Leblanc focussed primarily on several problematic activities
relating to the Program’s administration. His most significant allegations
targeted the misuse and misdirection of public funds. Throughout the course of
his communication with MaChouette, Mr. Leblanc agreed to protect her
confidentiality and anonymity.
[5]
In response to the articles written by Mr. Leblanc and others who picked
up the story, considerable media and public interest was directed toward the
Sponsorship Program. Following a scathing report from the Auditor General, a
Royal Commission (the “Gomery Inquiry”) was struck to investigate what had
become known colloquially as the “Sponsorship Scandal”.
[6]
In 2006, Mr. Leblanc took an unpaid leave of absence from the Globe and
Mail in order to author a book about the Sponsorship Scandal, which he
eventually published under the title Nom de code: MaChouette: l’enquête sur
le scandale des commandites (2006). While the Globe and Mail authorized the
reproduction of articles that it had published and for which it held the
copyright, it was not Mr. Leblanc’s book publisher. Nor did the Globe and Mail
have any financial stake in the book’s publication.
[7]
In March 2005, the Attorney General of Canada filed a motion, in the
Quebec Superior Court, seeking to recover the money paid by the federal
government under the impugned Program, which amounted to over $60 million. The
proceedings were instituted against several of the companies and individuals
retained by the Program and implicated in the Sponsorship Scandal, including
the entities that collectively form Groupe Polygone. Since these proceedings
were initiated, the Attorney General has maintained that it was not until May
2002 — after receiving the Auditor General’s report — that the government began
to suspect fraud. The full extent of the fraud and the identity of its
perpetrators, the government says, crystallized only with the revelations
disclosed by the Gomery Inquiry.
[8]
In response, Groupe Polygone, maintaining that the Government of Canada
had earlier knowledge of the scandal, sought to advance a defence of
prescription under the Civil Code of Québec, R.S.Q., c. C-1991 (“Civil
Code” or “C.C.Q.”). As the litigation proceeded, and in support of
its prescription defence, Groupe Polygone applied for an order requiring that
certain persons, including several federal government employees, answer
questions aimed at identifying Mr. Leblanc’s source. In a series of
orders, Hébert J. instructed the individuals identified by Groupe Polygone
to answer the questions in writing and to keep the matter confidential. At the
request of the Attorney General, he also appointed counsel to act as advisor to
those named individuals. Hébert J. then extended his initial order to
answer questions to an additional group of individuals.
[9]
Almost a year later, the Globe and Mail brought a revocation motion in
respect of the orders issued by Hébert J., arguing that their effect would be
to breach journalist-source privilege. It asked that these orders be quashed.
Mr. Leblanc testified on the motion, argued before de Grandpré J., and he was
cross-examined by counsel for Groupe Polygone. Counsel for the Globe and Mail
objected to a number of questions posed to Mr. Leblanc, on the basis that they
were either irrelevant, or that his answering them would lead to a breach of
journalist-source privilege (the “objection motion”). De Grandpré J.
dismissed these objections, orally, and refused to recognize the existence of a
journalist-source privilege. Leave to appeal was denied by a single judge of
the Court of Appeal, on the basis that the court lacked jurisdiction to hear
the appeal. Rather than have its journalist answer the questions, the Globe and
Mail sought to discontinue the revocation proceedings. De Grandpré J. refused
to allow the discontinuance, and the Quebec Court of Appeal dismissed the
appeal (2008 QCCA 2464 (CanLII)).
[10] In
October 2008, Mr. Leblanc, in an article entitled “Sponsorship firm moves to
settle with Ottawa”, The Globe and Mail, October 21, 2008, at p. A11,
reported that Groupe Polygone had made a $5 million offer to settle its portion
of the lawsuit. He also reported that the federal government had rejected the
offer, and was in negotiations to obtain an additional $10 million from Groupe
Polygone. Mr. Leblanc obtained the information at the heart of this article
from an unauthorized government source.
[11] During
the hearing of the discontinuance proceedings, counsel for Groupe Polygone
complained intently about the leaks dealing with the content of the
confidential settlement negotiations, and about repeatedly finding Groupe
Polygone the subject of news articles and stories. In response, and on his own
motion, de Grandpré J. made an order prohibiting Mr. Leblanc from further
reporting and publishing on the state of the confidential settlement
negotiations between the Attorney General and the defendants in the principal
litigation. While the Globe and Mail objected vigorously to what it insisted
was a publication ban, and one issued without the benefit of hearing from
either party, de Grandpré J. maintained that the order was not a publication
ban. He provided no further written or oral reasons for his decision, and the
Quebec Court of Appeal again rejected the Globe and Mail’s application for
leave to appeal (2009 QCCA 235 (CanLII)).
[12] A few
months later, de Grandpré J. ordered a similar publication ban against La
Presse and one of its journalists, Joël-Denis Bellavance. It forbade the
publication of any information related to the confidential settlement
negotiations. On this occasion, he provided written reasons (2009 QCCS 1624
(CanLII)). The Quebec Court of Appeal quashed this decision (Gesca ltée v.
Groupe Polygone Éditeurs inc. (Malcom Média inc.), 2009 QCCA 1534, [2009]
R.J.Q. 1951), and an application for leave to appeal is currently before this
Court.
[13] The
legal issues raised by the appeals concerning journalist-source privilege in
the civil litigation context and the publication ban warrant their own
consideration. I will consider each appeal in its own right.
III. The Objections and Questions Relating to
the Confidentiality of Sources
A. Nature of the Appeal
[14] The
first appeal (33114) deals with the questions put to Mr. Leblanc in the course
of his examination with respect to the revocation matter. The issue raised by
this appeal is whether the relationship between Mr. Leblanc and MaChouette
is protected by journalist-source privilege, and thereby exempts Mr. Leblanc
from answering any questions that would lead to her identification.
[15] The
Globe and Mail argues that the basis of the journalist-source privilege is a
constitutional one, rooted in s. 2 (b) of the Canadian Charter
and s. 3 of the Quebec Charter of human rights and freedoms, R.S.Q., c.
C-12 (“Quebec Charter”). The privilege will arise when a person (1) is
engaged in newsgathering; and (2) has provided an undertaking of
confidentiality to his or her source, without which it is reasonable to assume
that the source would not have come forward. Recognizing that no constitutional
right is absolute, the Globe and Mail argues that s. 9.1 of the Quebec
Charter requires a weighing of the right not to disclose the identity of a
confidential source, against the “democratic values, public order and the
general well-being of the citizens of Québec”. In the absence of a competing Quebec
Charter right to obtain all relevant evidence in civil proceedings, the
balancing must tip in favour of freedom of the press. The Globe and Mail argues
that a wide range of factors are relevant to this balancing exercise: whether
the cause of action is patrimonial or extra-patrimonial; whether the action is
for damages, or some other form of relief; whether the journalist is a party to
the proceedings; whether the issue is central to the resolution of the dispute;
whether the story was published, and if so, its degree of public importance;
and the potential consequences of disclosure.
[16] According
to the Globe and Mail, the party seeking to pierce the privilege must then
demonstrate (1) that the identity of the source is necessary to establish a
particular fact; and (2) that establishing that particular fact is necessary
for disposing of an issue in the dispute. Requiring a journalist to reveal the
identity of a confidential source, under testimonial compulsion, should be a
matter of last resort, not one of mere convenience. A recognition of the
privilege, the Globe and Mail argues, translates into an evidentiary privilege,
and thereby operates in a manner analogous to the right to professional secrecy
under s. 9 of the Quebec Charter. However, if this Court rejects the
existence of a stand-alone right, then the Globe and Mail argues, in the
alternative, that the Wigmore doctrine, developed under the common law, however
modified so as to account for the civil law tradition, is appropriate.
[17] Groupe
Polygone argues ardently against the recognition of constitutional protection
for the journalist-source relationship. Rather, the Wigmore test or a similar
test developed under the civil law, and more specifically a recognition of the
privilege on a case-by-case basis, is preferable. For the privilege to be
recognized in a particular case, a journalist must demonstrate, on the facts,
that the benefits of maintaining the privilege outweigh the prejudicial effects
on the rights of parties to civil litigation, and those of society in the quest
for truth and the proper administration of justice. Pursuant to this approach,
Groupe Polygone says, disclosure should be the rule and testimonial immunity
the exception.
[18] The
Attorney General of Canada argues that, prior to determining whether a
privilege of any kind exists, a court must first consider whether the proposed
questions are relevant. If they are not, then there is no need to consider the
existence of a privilege. As to the nature of journalist-source privilege, the
Attorney General advances that, in the context of civil proceedings under the Civil
Code, the court cannot resort to the Wigmore framework. The applicable
framework must be grounded in the Civil Code and the Quebec Charter,
and involve an assessment and balancing of competing interests. A journalist
seeking to have the privilege recognized must demonstrate: that he or she was
performing the work of a journalist; that the source requested anonymity and
the journalist agreed to protect the source’s identity; that the protection has
not been waived; that the questions put to the journalist, if answered, would
disclose the identity; and that the prejudice caused to freedom of the press
outweighs any prejudice to the fairness of the trial. By contrast, a party
seeking disclosure must demonstrate: that the questions are relevant, and not
simply a fishing expedition; that there is no other means of obtaining the
information; that the cause of action or defence is well-founded in law; that
the questions do not infringe unnecessarily on the right to privacy; and that
the failure to answer the questions will necessarily jeopardize the fairness of
the trial.
B. The Scope and Reach of R. v. National Post
[19] In R.
v. National Post, this Court recently addressed the question of whether
journalist-source privilege exists in Canada and, more importantly, the
methodological framework through which it should be assessed. R. v. National
Post involved the sending to the National Post newspaper, and its
investigative reporter Andrew McIntosh, of a document that appeared to
implicate then Prime Minister Jean Chrétien in a serious financial conflict of
interest. The document in question, upon further investigation, appeared to be
a forgery. The National Post found itself in possession of physical
evidence, which in the view of the Crown was reasonably linked to a serious
crime, and possibly the actus reus or corpus delicti of the
alleged offences. The RCMP sought and obtained a search warrant and assistance
order, which compelled the National Post to assist in locating the
document, in order to conduct forensic and DNA testing on it and, it was hoped,
identify the alleged forger. The National Post applied to have the
warrant and assistance order quashed, partly on the basis that its disclosure,
and the subsequent forensic testing, would “out” Mr. McIntosh’s confidential
source.
[20] The
Court was presented with three possibilities for recognizing the
journalist-source privilege in the context of a criminal investigation: a
constitutional privilege rooted in s. 2 (b) of the Canadian Charter ;
a class-based privilege, analogous to solicitor-client privilege; or a
privilege recognized on a case-by-case basis according to the four-factored
Wigmore framework. The Court, unanimously, rejected the first two options. With
respect to a constitutional privilege, Justice Binnie, writing for the
majority, found that it carried the argument too far to suggest that specific
newsgathering techniques are constitutionally entrenched. Furthermore, this
Court had avoided conferring constitutional status on testimonial immunities
more generally. Finally, the Court was unprepared “[t]o throw a constitutional
immunity around the interactions of such a heterogeneous and ill-defined group
of writers and speakers and whichever ‘sources’ they deem worthy of a promise
of confidentiality and on whatever terms they may choose to offer it” (para.
40). The Court also held that, while there was a need for the law to protect
the identity of confidential sources in some circumstances, the purpose of free
expression guaranteed in s. 2 (b) could be met without granting a broad
constitutional immunity to journalistic sources. Therefore, an order compelling
a journalist to identify a source would generally not violate s. 2 (b)
(para. 41).
[21] The
Court also rejected the existence of a class-based privilege, on the basis that
there is no formal accreditation or licensing process for journalists in place,
as there is for lawyers for example, and no professional organization regulates
the profession and maintains professional standards (para. 43). Nor is it
clear, when dealing with this type of privilege, whether the journalist or the
source is the “holder” of the privilege (para. 44), and no one had been
able to suggest “workable criteria for the creation or loss of the claimed
immunity” (para. 45). Finally, because a class-based privilege is more rigid
than a privilege recognized on a case-by-case basis, it would “not lend itself
to the same extent to be tailored to fit the circumstances” (para. 46) as they
arise in individual cases.
[22] The
Court concluded that the case-by-case approach, based on the Wigmore criteria
and infused with Canadian Charter values, provided “a mechanism with the
necessary flexibility to weigh and balance competing public interests in a
context-specific manner” (para. 51), and would allow the “opportunity for
growth that is essential to the proper function of the common law” (para. 55).
Therefore, in order for journalist-source privilege to be recognized in a
particular case, the claimant must satisfy all four Wigmore factors: (1) the
relationship must originate in a confidence that the source’s identity will not
be disclosed; (2) anonymity must be essential to the relationship in which the
communication arises; (3) the relationship must be one that should be sedulously
fostered in the public interest; and (4) the public interest served by
protecting the identity of the informant must outweigh the public interest in
getting at the truth (para. 53).
[23] Justice
Binnie put particular emphasis on the significance of the third and fourth
factors, in the journalist-source context. The third factor, whether the
relationship is one that the community should sedulously foster (para. 57),
introduces a certain degree of flexibility in the evaluation of the different
types of sources and different types of journalists. He suggested that whether
the relationship is between a source and a blogger, or between a source and a
professional journalist, will impact upon the court’s weighing exercise. But,
according to Justice Binnie, the fourth factor does the lion’s share of the
work, and the court’s task is to “achieve proportionality in striking a balance
among the competing interests” (para. 59).
[24] As in
this case, the Court in National Post was presented with an argument
that, after a journalist has established the first three Wigmore criteria, the
onus ought to shift to the party seeking disclosure to demonstrate, on a
balance of probabilities, why it should be ordered. The Court rejected this
argument. Given that the evidence is presumptively compellable and admissible,
the burden of persuasion remains on the media to show that the public interest
in protecting a secret source outweighs the public interest in criminal
investigations. The Court ultimately concluded that every claim to
journalist-source privilege — be it in the face of testimonial compulsion or
the production of documents — is situation specific, with the public’s interest
in the freedom of expression always weighing heavily in the court’s balancing
exercise.
[25] While
this appeal raises issues similar to those addressed in National Post,
the context is nevertheless different. This case involves civil litigation, not
the criminal investigative process. It involves testimonial compulsion, and not
the production of documents or other physical evidence. The parties’ dispute is
subject to the laws of Quebec and the Quebec Charter. These factors must
be considered in determining how, and to what extent, the majority reasons in National
Post are equally applicable to the issues raised by this appeal.
C. National Post and the Law of Civil
Procedure and Evidence in the Context of the Civil Law of Quebec
[26] There
is no question that the Wigmore case-by-case approach to journalist-source
privilege applies in the context of ordinary civil litigation subject to the
laws of the common law provinces. However, it was argued before us that, given
the civil law tradition in the province of Quebec, it would be inappropriate
for this Court to introduce into the Quebec law of civil procedure and evidence
a framework for considering journalist-source privilege which originates
entirely in the common law.
[27] The
question of how to address the problem of the relationship between the media
and their sources, in the context of civil litigation in Quebec, raises
difficult issues and warrants careful consideration. It requires yet another
examination of the sources of the law of civil procedure and evidence in the
province of Quebec. At issue is the relationship between Quebec’s civil law,
its Civil Code, its system of procedure and its Code of Civil
Procedure, R.S.Q., c. C-25 (“C.C.P.”), the Quebec Charter
and, in some instances, the Canadian Charter . An added dimension of the
problem is that Quebec’s rules of procedure and evidence are nevertheless
applied by a court system that reflects the British common law tradition, and
is largely similar to the court organization in the common law provinces of
Canada.
[28] As in
the criminal law, the relationship between journalists and their sources in the
context of civil litigation may engage basic constitutional and societal values
relating to freedom of expression and the right to information in a democratic
society. A proper framework to address them must be established, which is
consistent with the normative structure of Quebec law and with its civil
tradition. But it must be acknowledged that the law of procedure and civil
evidence in the province of Quebec reflects a hybrid legal tradition and
culture, with rules and principles originating in both the common law and the
civil law (D. Jutras, “Culture et droit processuel: le cas du Québec” (2009),
54 McGill L.J. 273). This is also an area of the law which is deeply
influenced by constitutional and quasi-constitutional instruments.
[29] Section
2 (b) of the Canadian Charter applies in the province of Quebec,
within the scope of s. 32 . The Quebec Charter enjoys
quasi-constitutional status (s. 52) (see Quebec (Commission des droits de la
personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27,
[2000] 1 S.C.R. 665, at paras. 27-28), and protects several important rights
that may be at stake in a claim of journalist-source privilege: s. 3,
freedom of expression; ss. 4 and 5, the protection of the dignity of the person
and of his private life; and s. 9, professional secrecy. Under the Quebec
Charter, these rights are both public and private. In addition, the Civil
Code, in force since 1994, constitutes a fundamental component of the
legal structure. Its preliminary provision affirms that it is the “jus
commune” of Quebec:
The Civil Code comprises a body of rules which, in all matters within
the letter, spirit or object of its provisions, lays down the jus commune,
expressly or by implication.
(See also Doré v. Verdun (City), [1997] 2 S.C.R. 862.)
Several
provisions of the Civil Code itself protect aspects of the fundamental
rights of the person, such as the right to life and integrity of the person
(art. 3) and his reputation (art. 35). It also includes a whole book, Book
Seven, arts. 2803 to 2874, on the law of civil evidence.
[30] Civil
procedure is also codified. Civil procedure in Quebec is primarily made up of
the laws adopted by the National Assembly, found in the C.C.P., and not
of judge-made rules. In Lac d’Amiante du Québec Ltée v. 2858-0702 Québec
Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, this Court confirmed the
fundamental importance of the C.C.P. It is the primary source of the
principles and rules of the law of civil procedure in Quebec. But the
codification of civil procedure does not mean that civil procedure, as administered
by the courts of Quebec, is completely detached from the common law model. The
structure of the court system itself remains basically the same, as I mentioned
above. Superior courts enjoy the constitutional protection of s. 96 of the Constitution
Act, 1867 . Moreover, as this Court indicated in Lac d’Amiante, not
everything is found in the C.C.P. It leaves room for rules of practice.
It also allows for targeted judicial intervention, and the authority to issue
orders that address the particular context of court cases, particularly under
arts. 20 and 46 of the C.C.P.
[31] The
law of evidence is applied by the Quebec courts in this context. With respect
to the problems raised by freedom of expression and the right to information,
the judges of the province of Quebec must address the same challenge of
reconciling conflicting values and interests as their colleagues in other
provinces. The Civil Code sets out the legal framework and the essential
rules of the law of civil evidence. But it does not resolve every issue that
the application of the laws of evidence and procedure may ultimately give rise
to. General principles and rules that belong to other areas of the law,
particularly constitutional law, may have to be considered or should inform the
solution crafted by the courts. A solution to the complex problem of the
existence, nature and scope of journalist-source privilege will have to be
found within this complex environment, bringing together its many strands.
D. Journalist-Source Privilege Under the
Quebec Charter
[32] It was
argued before us that ss. 3, 9 and 44 of the Quebec Charter can
constitute the basis for a class-based, quasi-constitutional journalist-source
privilege in the province of Quebec, analogous to the claim of a constitutional
class privilege rooted in the Canadian Charter that was argued in
National Post.
[33] Section
3 of the Quebec Charter protects, among other rights, freedom of
expression:
Every person is the possessor of the fundamental
freedoms, including freedom of conscience, freedom of religion, freedom of
opinion, freedom of expression, freedom of peaceful assembly and freedom
of association.
However, for the
reasons set out in National Post, and in particular the difficulty in
defining such a “heterogeneous and ill-defined group of writers and speakers”
subject to the privilege in the province of Quebec with the necessary degree of
certainty, freedom of expression under the Quebec Charter cannot
constitute the basis for recognizing a class-based, quasi-constitutional journalist-source
privilege. It can, of course, inform the analysis.
[34] But
the Globe and Mail also suggests that another provision of the Quebec
Charter is relevant to the analysis. It argues that unlike the Canadian
Charter, s. 44 of the Quebec Charter expressly protects access to
information: “Every person has a right to information to the extent provided by
law.” However, s. 44 does not confer a fundamental right. Rather, it belongs to
a class of social and economic rights, the scope of which is defined by the law
itself (Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4
S.C.R. 429). This right is limited to the extent that access to information is
already provided for by law. Section 44 does not broaden the scope of the
right, and cannot be the source of a quasi-constitutional right to the
protection of journalists’ sources. While the s. 44 right can also inform the
protection of the confidential relationship between journalists and their
sources, it cannot constitute the basis for recognizing that privilege.
[35] That
leaves a consideration of s. 9, which protects professional secrecy:
Every person has a right to non‑disclosure of confidential
information.
No person bound to professional secrecy by law and no priest or
other minister of religion may, even in judicial proceedings, disclose
confidential information revealed to him by reason of his position or
profession, unless he is authorized to do so by the person who confided such
information to him or by an express provision of law.
The tribunal must, ex officio, ensure that
professional secrecy is respected.
Professional
secrecy applies only to those professionals bound to it by law, and is
currently restricted to the 45 professional orders subject to the Quebec
Professional Code, R.S.Q., c. C-26 (see, e.g., N. Vallières, “Le secret
professionnel inscrit dans la Charte des droits et libertés de la personne du
Québec” (1985), 26 C. de D. 1019, at pp. 1022-23). This list does
not include journalists, even though their inclusion was contemplated, but yet
ultimately rejected, by the National Assembly (see Journal des débats:
Commissions parlementaires, 3rd Sess., 30th Leg., No. 6, January 22, 1975,
at p. B-322; Ministry of Justice, Justice Today, by J. Choquette (1975),
at pp. 232-35). Accordingly, professional secrecy cannot ground a
quasi-constitutional right to the protection of media sources.
[36] In my
view, there is no basis for drawing an analogy between professional secrecy and
journalist‑source privilege. Firstly, the associations of journalists are
not regulated. Any person can become a member, and importantly not all
journalists are members of the associations that exist, like the Fédération
professionnelle des journalistes du Québec (see online: www.fpjq.org). The
Fédération has no monopoly over the practice and regulation of journalism in
the province. Nor is journalism a profession which the legislature has, in the
public interest, sought to regulate directly or to which it has sought to
delegate the authority of self-regulation.
[37] More
importantly, journalism is not a profession of the type that professional
secrecy traditionally purports to protect. Professor Ducharme has described the
two criteria that must be satisfied before a professional will be made subject
to professional secrecy:
[translation] First, there must be a law
that imposes an obligation of silence on an individual and, second, that
obligation must be rooted in a helping relationship. In our view, only
members of professional orders governed by the Professional Code meet
this twofold condition. [Emphasis added.]
(L’administration de la preuve (3rd ed. 2001), at p. 94)
The second
criterion is an important one: that the obligation of silence be rooted in a
relationship where the beneficiary of the privilege seeks out the professional
for personal help or assistance. In other words, the obligation of
confidentiality is [translation]
“in the exclusive interest of the person who disclosed [the information], and
in the context of a helping relationship” (Ducharme, at p. 97). Given this
emphasis on “helping relationship”, and the fact that some 45 professions are
already by law subject to s. 9, Ducharme suggests that [translation] “no member of any other profession would meet
this twofold condition” (p. 97).
[38] The
relationship between journalists and their sources is not one that would often
result in such a “helping relationship”. What is more, the legislature has not
seen fit to include journalists in the list of professions subject to
professional secrecy. It has spoken, and done so clearly.
[39] In my
view, there is no basis for recognizing journalist-source privilege in the rest
of the Quebec Charter. The basis for recognizing the privilege must be
found in other parts of the law.
E. Testimonial Privilege Under the Civil Law
of Quebec
[40] This
Court has on many occasions recognized the mixed nature of Quebec procedural
law (see, e.g., Foster Wheeler Power Co. v. Société intermunicipale de
gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1
S.C.R. 456; Lac d’Amiante; Bisaillon v. Keable, [1983] 2 S.C.R.
60). Generally speaking, the sources of the Civil Code’s substantive
evidentiary rules are derived from the French law tradition (see J.-C. Royer
and S. Lavallée, La preuve civile (4th ed. 2008), at pp. 22-23 and 39).
However, many of the procedural and evidentiary rules — those dealing with
testimony, the administration of justice, and the exclusion of evidence, for
example — have their source in the old common law rules (see Royer, at pp.
317-18; Bisaillon; Foster Wheeler, at paras. 28-29). As
was noted in Foster Wheeler, “[t]hese mixed origins are without doubt at
the root of the semantic, if not conceptual problems that continue to affect
this field of law” (para. 23).
[41] Article
1206 of the Civil Code of Lower Canada (“C.C.L.C.”) explicitly
allowed Quebec judges, in commercial matters, to resort to common law rules and
principles of evidence when there was no otherwise applicable Code provision
relating to the proof of a particular fact. When the C.C.L.C. was
repealed and replaced with the C.C.Q., no substantive equivalent to art.
1206 was included. The parties all argue that the effect of the repeal of the C.C.L.C.,
and its replacement with the C.C.Q., is that it is now impossible to
resort to common law legal principles to fill any gaps present in the Civil
Code. It is on this basis, primarily, that they argue that the Wigmore
framework cannot be imported into the law of Quebec as a basis for recognizing
journalist-source privilege.
[42] There
is an academic and jurisprudential divide on this particular issue. On the one
hand, Ducharme is of the view that [translation]
“when it came into force, the Code repealed the old French law and English law
as the suppletive law of evidence” (Précis de la preuve (6th ed. 2005),
at p. 5). By contrast, Royer states that [translation]
“[t]he new provisions of the Civil Code of Québec that apply to such
matters do not alter the former law. They merely restate it and clarify it.
They are therefore interpretive rules that can apply even to juridical acts
from before January 1, 1994” (p. 41).
[43] From a
jurisprudential perspective, the Quebec Court of Appeal has accepted Wigmore as
the appropriate framework for dealing with claims of privilege raised on a
case-by-case basis: Société d’énergie de la Baie James v. Lafarge Canada Inc.,
[1991] R.J.Q. 637 (litigation privilege); Boiler Inspection and Insurance
Company of Canada v. Corporation municipale de la paroisse de St-Louis de France,
[1994] R.D.J. 95 (litigation privilege). However, these cases predate the
coming into force of the Civil Code.
[44] The
Superior Court is divided on whether Wigmore is applicable in Quebec, in a
number of judgments rendered since the coming into force of the Civil Code.
The doctrine was explicitly rejected in Grenier v. Arthur, [2001] R.J.Q.
674, Centre de réadaptation en déficience intellectuelle de Québec v. Groupe
TVA inc., [2005] R.J.Q. 2327, and Drouin v. La Presse ltée, [1999]
R.J.Q. 3023. In each case the court preferred to rely on the Civil Code and
a balancing of applicable Quebec Charter rights. By contrast, Wigmore
was expressly used to recognize a case-by-case privilege in Tremblay v.
Hamilton, [1995] R.J.Q. 2440, and Landry v. Southam Inc., 2002
CanLII 20587. Tremblay dealt specifically with the recognition of
journalist-source privilege.
[45] When
the mixed source of the Quebec law of procedure and evidence, and in particular
the common law source of many exclusionary rules of evidence, is properly
recognized, it becomes difficult to accept the argument that there is no
residual role for common law legal principles in the development of this part
of Quebec law. Quebec is, after all, a mixed jurisdiction. If the ultimate
source of a legal rule is the common law, then it would be only logical to
resort to the common law, in the process of interpreting and articulating that
same rule in the civil law. Even if the rule was transplanted and naturalized
in the civil law context, it remains interesting and relevant to consider how
the rule is evolving in the Canadian common law system, in order to frame an
appropriate interpretation in the civil law system:
[translation] However, the rules set out
in the Civil Code of Québec are rooted in French law and in the common
law, which means that French law and the common law can continue to be used to
interpret those rules.
. . .
This could justify maintaining certain common law privileges associated
with the accusatorial and adversarial nature of trials even though those
privileges are not formally recognized in the articles of the Code of Civil
Procedure.
(Royer, at p. 39)
This is, of
course, premised on the fact that the interpretation and articulation of such a
rule would not otherwise be contrary to the overarching principles set out in
the C.C.Q. and the Quebec Charter.
F. Development of an Analytical Framework
[46] Neither
the Civil Code nor the Code of Civil Procedure explicitly
provides for the recognition in the civil litigation context of
journalist-source privilege, which now exists in the common law jurisdictions.
A gap in the codified law exists, and the question becomes one of determining
the appropriate way of filling it. Of course, the judiciary’s authority to go
beyond the written codes and legislation, in the event of a gap, is far more
circumscribed under the civil law tradition than it is under the common law:
A Quebec court may not create a positive rule of
civil procedure simply because it considers it appropriate to do so. In this
respect, a Quebec court does not have the same creative power in relation to
civil procedure as a common law court, although intelligent and creative
judicial interpretation is often able to ensure that procedure remains flexible
and adaptable. Although Quebec civil procedure is mixed, it is nonetheless
codified, written law, governed by a tradition of civil law interpretation.
(See J.-M. Brisson, “La procédure civile au Québec avant la codification: un
droit mixte, faute de mieux”, in La formation du droit national dans les
pays de droit mixte (1989), 93, at pp. 93 to 95; also by the same author: La
formation d’un droit mixte: l’évolution de la procédure civile de 1774 à 1867,
supra, at pp. 32-33.) In the civil law tradition, the Quebec courts must
find their latitude for interpreting and developing the law within the legal
framework comprised by the Code and the general principles of procedure
underlying it. The dissenting opinion written by Biron J.A. quite correctly
reminds us of these characteristics of a codified legal system and accurately
identifies the nature of the method of analysis and examination that applies in
this case.
(Lac d’Amiante, at para. 39; see also Foster Wheeler.)
[47] The
only provision in the C.C.Q. dealing with the discretion of a judge to
exclude otherwise relevant evidence is art. 2858:
The court shall, even of its own motion, reject any evidence obtained
under such circumstances that fundamental rights and freedoms are breached and
that its use would tend to bring the administration of justice into disrepute.
The latter criterion is not taken into account in the
case of violation of the right of professional privilege.
Because
journalist-source privilege is not a quasi-constitutional privilege under the Quebec
Charter, a judge cannot exempt a journalist from testifying as to the
identity of a confidential source, on the basis that doing so would constitute
a violation of either s. 3 or s. 44 of the Quebec Charter.
[48] Nevertheless,
constitutional rights under the Canadian Charter and quasi-constitutional
rights under the Quebec Charter are engaged by a claim of
journalist-source privilege. Some form of legal protection for the confidential
relationship between journalists and their anonymous sources is required.
Conflicting rights and interests arise under the Quebec Charter and must
be addressed and reconciled. This case also raises important questions related
to the development of human rights in Quebec. The creation of a framework to
address these issues represents a legitimate and necessary exercise of the
power of the court to interpret and develop the law.
[49] In my
view, a helpful analogy can be drawn between the journalist-source privilege at
issue in this case, and police-informer privilege, which is also a judicially
created “rule of public policy” (Bisaillon, at p. 90, citing Marks v.
Beyfus (1890), 25 Q.B.D. 494 (C.A.), at p. 498). Indeed, I find that,
admittedly in a very broad sense, police-informer privilege is more analogous
to journalist-source privilege than is the professional secrecy contemplated by
s. 9 of the Quebec Charter, although it arose in the context of criminal
procedure within the common law.
[50] Police-informer
privilege, like professional secrecy and solicitor-client privilege, is a
class-based privilege. In this sense, it is unlike journalist-source privilege,
which is clearly a case-by-case privilege. However, it has its roots as a
common law rule of public policy, aimed at facilitating the investigation of
crime. As Beetz J. noted in Bisaillon:
The rationale of the rule as it applies to police informers is plain.
If their identity were liable to be disclosed in a court of law, these sources
of information would dry up and the police would be hindered in their duty of
preventing and detecting crime. So the public interest in preserving the
anonymity of police informers had to be weighed against the public interest
that information which might assist a judicial tribunal to ascertain facts
relevant to an issue upon which it is required to adjudicate should be withheld
from that tribunal. [pp. 91-92]
(Quoting D. v. National Society for the Prevention of Cruelty to
Children, [1978] A.C. 171 (H.L.), at p. 218, per Lord Diplock.)
[51] In Bisaillon,
Beetz J. also took note of the structure of the privilege: “. . . at common law
the secrecy rule regarding police informers’ identity has chiefly taken the
form of rules of evidence based on the public interest . . .” (p. 93). When
police-informer privilege is successfully established, “relevant evidence is
excluded in the name of a public interest regarded as superior to that of the
administration of justice” (p. 96). Therefore, the manner in which the
exclusionary rule operates is also analogous to journalist-source privilege.
[52] Importantly,
for the purposes of this appeal, this Court held in Bisaillon that the
common law rule of police-informer privilege applies in the province of
Quebec. An issue in that case, among others, was whether the Commissioner
investigating aspects of police conduct during the F.L.Q. crisis could compel
the disclosure of an informant’s identity, contrary to the common law rule. It
had been argued that the C.C.P. was comprehensive, and because a
testimonial exception for police informants was not included, the Commissioner
could compel the disclosure. Beetz J., for a unanimous Court, disagreed.
Notably, the C.C.P. provision relied upon as displacing police-informer
privilege was not nearly specific enough:
However, in my opinion the scope of this codification is limited to
these two aspects which it mentions expressly: it does not extend to the
secrecy rule regarding police informers’ identity, as to which it is silent. In
other words, the codification of art. 308 applies only to the part of the
common law which is included in the law on Crown privilege, but not to the
specific legal system relating to the secrecy rule regarding police informers.
The law had itself decided that it is always contrary
to the public interest for a peace officer to be required to disclose the identity
of a police informer, and that this aspect of the public interest must always
take precedence over the need to do more complete justice, subject to a single
exception in criminal law. To decide as the Court of Appeal did would mean that
by adopting such a general provision as art. 308, the legislator intended
simply to obliterate this final judgment made by the law and the absolute rule
which results from it . . . . [pp. 102-3]
Beetz J.
concluded that, because the origin of police-informer privilege is the common
law, the rule remained a part of Quebec law unless it had been overturned by a
validly adopted statutory provision:
Unless overturned by validly adopted statutory
provisions, these common law rules must be applied in an inquiry into the
administration of justice, which is thus a matter of public law. Moreover, the
point at issue concerns the power to compel a witness to answer, by contempt of
court proceedings if necessary, the source for which is also the common law . .
. . [p. 98]
Beetz J. then
turned to a consideration of whether the common law rule had been altered by
the C.C.P. Having found that it had not, Beetz J. concluded that the
common law rule remained a part of Quebec law in its original form.
[53] There
is therefore a basis in the laws of Quebec for a journalist-source privilege or
an exemption from the general obligation to give evidence in civil cases.
Despite its common law origins, the use of a Wigmore-like framework to recognize
the existence of the privilege in the criminal law context, as established in National
Post, is equally relevant for litigation subject to the laws of Quebec.
This approach conforms both with s. 2 (b) of the Canadian Charter
and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission
of the intervener Canadian Civil Liberties Association that the Wigmore
framework cannot differentiate between relationships that have a constitutional
dimension and those that do not. It is clear that it does so already (R. v.
Gruenke, [1991] 3 S.C.R. 263; National Post). This approach also
accords with the law of evidence in Quebec. The C.C.Q. grants judges the
authority to exclude evidence or testimony in the event of a breach of the Quebec
Charter. It is not inconsistent, either in principle or in fact, to give
judges the authority to exempt a journalist from testifying, when his s. 2 (b)
Canadian Charter and s. 3 Quebec Charter rights are found to be
paramount. Indeed, I would add that art. 46 of the C.C.P., which
provides for the general powers of the Superior Court, appears to provide its
judges with the necessary authority to do so on a case-by-case basis:
The courts and judges have all the powers necessary for the exercise
of their jurisdiction.
They may, at any time and in all matters, whether
in first instance or in appeal, issue orders to safeguard the rights of the
parties, for such time and on such conditions as they may determine. As
well, they may, in the matters brought before them, even on their own
initiative, issue injunctions or reprimands, suppress writings or declare them
libellous, and make such orders as are appropriate to deal with cases for
which no specific remedy is provided by law.
[54] Whether
they rely explicitly on the Wigmore framework or not, what the lower court
decisions ultimately demonstrate is the need for a balancing exercise between
the competing rights or interests at stake. To paraphrase my colleague Justice
Binnie in National Post, this all sounds very much like Wigmore where,
at the crucial fourth step, the question is whether the public interest served
by protecting the identity of the informant outweighs the public interest in
getting at the truth. Indeed, the Wigmore framework itself, when stripped to
its core, is simply a taking into account of competing interests. The Wigmore
criteria can therefore shape the structure of the analysis and the elements to
be considered, in claims of journalist-source privilege brought in matters
engaging the laws of Quebec.
[55] It is
also a framework that is sufficiently flexible to take into account the variety
of interests that may arise in any particular case, and those that are certain
to arise in civil proceedings taking place in the common law provinces. The
overarching issues raised by this appeal are of course not unique to the
province of Quebec. The news media’s reach is borderless. This is further
support for an approach that would result in consistency across the country,
while preserving the distinctive legal context under the Civil Code.
[56] As
mentioned at the outset, this case deals with testimonial compulsion and not,
as in National Post, with the production of documents or other physical
evidence. Nevertheless, in civil litigation proceedings, the presumption is that
all relevant evidence is admissible and that all those called to testify with
respect to relevant evidence are compellable. On this point, art. 2857 of the Civil
Code is relevant: “All evidence of any fact relevant to a dispute is
admissible and may be presented by any means.” It therefore goes almost without
saying that if the party seeking disclosure of the identity of the source
cannot establish that this fact is relevant, then there will be no need to go
on to consider whether the privilege exists. The threshold test of relevance
plays, as it does in many other contexts, an important gatekeeping role in the
prevention of fishing expeditions. (See, e.g., Frenette v. Metropolitan Life
Insurance Co., [1992] 1 S.C.R. 647 (holding that the production of medical
records must be inextricably linked to the ability to prepare a full defence
and go to the central issue in the proceeding, and that there must be no other
means for proving the case). See also St. Elizabeth Home Society v. Hamilton
(City), 2008 ONCA 182, 89 O.R. (3d) 81, at para. 3, per Sharpe J.A.;
Charkaoui (Re), 2008 FC 61, [2009] 1 F.C.R. 507, at paras. 70‑71
and 74, per Noël J.; Tremblay, at p. 2442.) It also
constitutes an added buffer against any unnecessary intrusion into aspects of
the s. 2 (b) newsgathering rights of the press.
[57] As
Justice Binnie noted in National Post, it is the fourth Wigmore factor
that will do most of the grunt work in the analysis of any claim for
journalist-source privilege. He set out a number of relevant considerations in
the determination of whether physical evidence must be disclosed in the
criminal context (see paras. 61-62). It is therefore helpful, particularly
given that this issue is being remitted to the Superior Court for
reconsideration, to highlight some of the considerations that will be relevant
to the court’s balancing exercise at the fourth Wigmore stage, in claims
arising in the context of civil litigation.
[58] The
first two considerations are related: the stage of the proceedings, and the centrality
of the issue to the dispute between the parties. With respect to the stage of
the proceedings, several points may be observed. On the one hand, the early
stage of the proceedings — such as the examination for discovery stage in this
case — might militate in favour of recognizing the privilege. The case will be
at its preliminary stages only, and will yet to have reached the stage of
determining the liability or the rights of the parties. This is a variation on
the U.K. “newspaper rule” (Attorney-General v. Mulholland, [1963] 2 Q.B.
477), whereby journalists are allowed to protect their sources during the
discovery stage, because at this point the procedural equities do not outweigh
the freedom of the press, but may be required to disclose at trial. On the
other hand, given the overall exploratory aims of examinations for discovery
and the confidentiality with which they are cloaked, in principle, the
testimony may be capable of providing a more complete picture of the case and
have the potential to resolve certain issues prior to going to trial. This
would militate in favour of not recognizing the privilege at this stage.
[59] I
recognize that, pursuant to art. 398.1 C.C.P., the party conducting the
discovery may file the transcript in evidence. Therefore, should a situation
arise where a court orders the journalist to answer questions on examination
for discovery, and the opposing party later in fact decides to file the
transcript pursuant to art. 398.1, then, given that the testimony would no
longer be confidential, the journalist should be entitled to again raise the
issue of privilege before the court and highlight any change in circumstances
that the filing of the transcript would have made.
[60] The
centrality of the question to the dispute will also be a relevant
consideration. While the identity of a confidential source may be relevant to
the dispute, particularly given the broad definition of relevancy in civil
proceedings, that fact may nevertheless be so peripheral to the actual legal
and factual dispute between the parties that the journalist ought not to be
required to disclose the source’s identity.
[61] Another
consideration, related to the centrality of the question to the dispute, is
whether the journalist is a party to the litigation, or simply an ordinary
witness. For example, whether it is in the public interest to require a
journalist to testify as to the identity of a confidential source will no doubt
differ if the journalist is a defendant in a defamation action, for example, as
opposed to a third party witness, compelled by subpoena to testify in a matter
in which he or she has no personal stake in the outcome. In the former context,
the identity of the source is more likely to be near the centre of the dispute
between the parties. When a journalist is called as a third party witness,
there is likely to be more of a question whether the source’s identity is
central to the dispute.
[62] A
crucial consideration in any court’s determination of whether the privilege has
been made out will be whether the facts, information or testimony are available
by any other means. As the Court recognized in National Post, “[t]he
‘alternate sources’ principle has been part of Canadian law since Re Pacific
Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487 (B.C.S.C.), as it has
been in the U.K.” (para. 66). Indeed, courts in the United Kingdom have
endorsed this necessity requirement, and held that mere administrative
convenience is insufficient (Secretary of State for Defence v. Guardian
Newspapers Ltd., [1985] 1 A.C. 339; In re An Inquiry under the Company
Securities (Insider Dealing) Act 1985, [1988] 1 A.C. 660; Cross and
Tapper on Evidence (11th ed. 2007), at p. 501).
[63] This,
of course, makes perfect sense. If relevant information is available by other
means and, therefore, could be obtained without requiring a journalist to break
the undertaking of confidentiality, then those avenues ought to be exhausted.
The necessity requirement, like the earlier threshold requirement of relevancy,
acts as a further buffer against fishing expeditions and any unnecessary
interference with the work of the media. Requiring a journalist to breach a
confidentiality undertaking with a source should be done only as a last resort.
[64] Other
considerations that may be relevant in a particular case include the degree of
public importance of the journalist’s story, and whether the story has been
published and is therefore already in the public domain. This list is, of
course, not comprehensive. In the end, context is critical.
G. Summary of the Proposed Test
[65] In
summary, to require a journalist to answer questions in a judicial proceeding
that may disclose the identity of a confidential source, the requesting party
must demonstrate that the questions are relevant. If the questions are
irrelevant, that will end the inquiry and there will be no need to consider the
issue of journalist-source privilege. However, if the questions are relevant,
then the court must go on to consider the four Wigmore factors and determine
whether the journalist-source privilege should be recognized in the particular
case. At the crucial fourth factor, the court must balance (1) the importance
of disclosure to the administration of justice against (2) the public interest
in maintaining journalist-source confidentiality. This balancing must be
conducted in a context-specific manner, having regard to the particular demand
for disclosure at issue. It is for the party seeking to establish the privilege
to demonstrate that the interest in maintaining journalist-source
confidentiality outweighs the public interest in the disclosure that the law
would normally require.
[66] The
relevant considerations at this stage of the analysis, when a claim to
privilege is made in the context of civil proceedings, include: how central the
issue is to the dispute; the stage of the proceedings; whether the journalist
is a party to the proceedings; and, perhaps most importantly, whether the
information is available through any other means. As discussed earlier, this
list is not comprehensive. I will now consider whether a claim of privilege
could be established in this case.
H. Application of the Framework
[67] After
a cursory mention of the four Wigmore factors, de Grandpré J. rejected the
Globe and Mail’s claim of journalist-source privilege. His oral reasons on this
issue, in their entirety, are as follows (A.R. (32975 and 33114), at pp.
13-14):
[translation]
MARK BANTEY:
But . . . so,
you’re dismissing them only . . .
THE COURT:
On the basis
that the answers to the questions will be relevant, regardless of
the . . .
MARK BANTEY:
Regardless of
the privilege.
THE COURT:
. . . the
privilege invoked by the witness. Are we agreed? So, I have very quickly (vite,
vite, vite) analysed the four (4) criteria
from . . .
SYLVAIN
LUSSIER:
Wigmore.
THE COURT:
. . . from Wigmore, and I conclude that, in the circumstances,
it would be preferable that the evidence be entered in the record. Is that
all right? [Emphasis added.]
[68] I agree
with the Globe and Mail that de Grandpré J. erred in concluding, [translation] “very quickly”, that it
was “preferable” to compel Mr. Leblanc’s answers on cross-examination. Mr.
Leblanc was entitled to have the questions put to him challenged for relevancy,
and his claim for privilege rigorously tested against the Wigmore criteria,
rather than having his claims left to the simple determination that it would be
“preferable” that the questions be answered (St. Elizabeth Home Society,
at paras. 38 and 52). In particular, if de Grandpré J. concluded that the first
three factors favoured disclosure, he was then required to ask whether, on
balance, the public interest in maintaining journalist-source confidentiality
outweighed the importance of disclosure to the administration of justice.
[69] In the
present case, it appears that the public interest in confidentiality would be
based largely on the degree to which specific questions would tend to reveal
the identity of MaChouette. It therefore follows that Mr. Leblanc could not
refuse to answer a question that could materially advance Groupe Polygone’s
prescription defence, but which could not threaten the identity of MaChouette.
Accordingly, evidence as to the likelihood that an answer to a particular
question would tend to reveal MaChouette’s identity would be of assistance.
Only where there would be a real risk that Mr. Leblanc’s answer would disclose
MaChouette’s identity, should the judge ask himself whether, after an
assessment of the relevant considerations, the balance of interests favours
privilege over disclosure. For example, at the far end of the spectrum, if Mr.
Leblanc’s answers were almost certain to identify MaChouette then, bearing in
mind the high societal interest in investigative journalism, it might be that
he could only be compelled to speak if his response was vital to the integrity
of the administration of justice. Ultimately, these matters will be for the
judge to determine, but he must consider them.
[70] I
would therefore allow the appeal, with costs throughout, and quash the decision
of the Superior Court. Given that neither party was permitted to make
submissions or tender evidence on the issue of journalist-source privilege,
particularly with respect to the balancing of interests at the fourth stage, I
would remit the matter to the Superior Court for a consideration of Mr.
Leblanc’s claim, in accordance with these reasons.
IV. The Publication Ban (33097)
A. Overview
[71] During
the course of the discontinuance proceedings incidental to the revocation
motion, counsel for Groupe Polygone provided de Grandpré J. with a copy of an
article written by Mr. Leblanc and published by the Globe and Mail on
October 21, 2008, entitled “Sponsorship firm moves to settle with
Ottawa”. Counsel for Groupe Polygone then proceeded with the following
complaint, in respect of the breach of confidentiality with respect to the
negotiations between his client and the federal government (reproduced in
Globe and Mail v. Canada (Procureur général), 2008 QCCA 2516 (CanLII), at
para. 9, per Bich J.A.):
[translation] Not only
do I not have the right to defend myself, but now I also have a problem even
negotiating because, as you and I both know, when . . . the very
principle of confidentiality of negotiations, it’s to allow parties to discuss
things freely, say things to each other that they would not say in public, to
explain their positions, which they would not necessarily state in public. And
that is also why mediation is strictly confidential, and why agreements to that
effect must be signed.
So I can’t defend myself, and I can no longer negotiate because
Mr. Leblanc still has a source in the government who is leaking
information whose truth I can neither confirm nor deny, but, you know, we don’t
even have the right to put it before a judge. The trial judge shouldn’t even
see it. In your case, it’s a bit different, you aren’t the trial judge.
But can you see the sort of prejudice – and this is something I must
bring to your attention – the sort of prejudice that my client has to suffer in
the circumstances? At some point, we have to put our foot down and draw the
line. To what extent can journalist-source privilege, when anonymous sources
are quoted, prevent parties from defending themselves, throwing a wrench in the
works when they try to negotiate? How far can it go before it tears the basic
fabric of the proper administration of justice?
And I think I have a serious problem with what’s
happening here, especially with the way my colleague’s client is exercising its
right to journalist-source privilege. It’s doing so in such a way as to
trample on my client’s rights, whether the right to defend itself or the right
to negotiate in confidence.
[72] Counsel
for Groupe Polygone made no specific request, and appeared content at this
point simply to voice his obvious frustration. Counsel for the Globe and Mail
offered no response, and the discontinuance proceedings proceeded accordingly.
At its conclusion, de Grandpré J. made the following order, which included a
complete publication ban on all proceedings then pending before the court (A.R.
(33097), at p. 55):
[translation] So, although
I am most reluctant to let cases be managed through procedural wrangling, I’m
going to let you go across the street. And as for Mr. Leblanc, I’m going
to prohibit you from publishing anything whatsoever regarding the proceedings
pending before the Court.
[73] The
order was made without notice, without an application, and without the benefit
of formal submissions from either party. Moreover, de Grandpré J. insisted that
it was not a publication ban. Both the fact of the order and its
characterization were met with understandable surprise by counsel for the Globe
and Mail. The transcript reveals the following exchange (A.R. (33097), at pp.
55-56):
[translation]
MARK BANTEY:
Then, Mr.
Justice, before that, I’m going to have some submissions to make.
That . . .
THE COURT:
No, no.
That, I . . .
MARK BANTEY:
. . . you’re
issuing -- Mr. Justice, pardon me, with respect, you’re issuing a publication
ban. Before issuing a publication ban, you have to . . .
THE COURT:
It is not a
publication ban.
MARK BANTEY:
Mr. Justice,
before issuing a publication ban, you have to give us a chance to make
submissions.
THE COURT:
What I don’t
want to hear and what I don’t want to read in the newspapers is an article like
the one that appeared in The Globe and Mail on October 21.
MARK BANTEY:
Mr. Leblanc
has an absolute right to publish what he did, Mr. Justice.
THE COURT:
If he does
it, he must do it in accordance with the strict letter of the law. In that
regard, you’ll inform me when the Court of Appeal has made its decision.
MARK BANTEY:
So, Mr.
Justice, just to make sure I understand, you’ve issued a publication ban?
THE COURT:
Yes.
[74] By
proceeding in this manner, in a case where there was no suggestion of urgency
or delay inherent in hearing submissions that would prejudice either party,
de Grandpré J. violated one of the fundamental rules of the adversarial
process: he denied the parties an opportunity to be heard before deciding an
issue that affected their rights. In so concluding, I should not be taken as
departing from Toronto Star Newspapers Ltd. v. Canada, 2010 SCC
21, [2010] 1 S.C.R. 721, and National Post, where it was held that, in
some cases, the question of journalist-source privilege may be determined
without hearing from the media in advance of making the order. However, as I
stated at the outset of these reasons, the Globe and Mail, which was
representing Mr. Leblanc’s interests, was already a party to these proceedings.
The circumstances for the exemption from notice and hearing contemplated by Toronto
Star and National Post are simply not present in this appeal.
[75] Given
these circumstances, the fact that de Grandpré J. made the impugned order on
his own motion and without having heard submissions from either party is
sufficient to allow the appeal. While I recognize that art. 46 of the C.C.P.
gives Superior Court judges the authority to make orders ex proprio motu,
it is incumbent on the judge to do so to “safeguard the rights of the parties”.
A publication ban, which by its very nature infringes the constitutional rights
of the party against whom it is imposed, cannot, absent extraordinary
circumstances not present here, be imposed ex proprio motu. However,
because the question of the publication ban has yet to be considered on its
merits, I will proceed with a complete analysis.
B. Fundamental Questions Raised by This
Appeal
(1) The Importance of Confidentiality at the
Pre-Trial Stage
[76] It is
important to pause and reiterate here the importance placed, by both the
judiciary and the legislature, on confidentiality at the pre-trial stage,
whether the proceedings are examinations for discovery, mediation or settlement
negotiations. It is also important to note that the rationale animating the
confidentiality undertaking in all of these contexts is the same.
[77] In Lac
d’Amiante, this Court concluded that there was an implied undertaking of
confidentiality concerning the evidence obtained or provided in examinations on
discovery. This undertaking is meant to allow the parties to obtain as full a
picture of the case as possible, without the fear that disclosure of the
information will be harmful to their interests, privacy-related or otherwise:
It appears
that the preferred approach is a far-reaching and liberal exploration that
allows the parties to obtain as complete a picture of the case as possible. In
return for this freedom to investigate, an implied obligation of
confidentiality has emerged in the case law, even in cases where the
communication is not the subject of a specific privilege. . . . The aim is to
avoid a situation where a party is reluctant to disclose information out of
fear that it will be used for other purposes. The aim of this procedure is also
to preserve the individual’s right to privacy.
. . .
. . . the purpose of the examination is to encourage
the most complete disclosure of the information available, despite the privacy
imperative. On the other hand, if a party is afraid that information will be
made public as a result of an examination, that may be a disincentive to
disclose documents or answer certain questions candidly, which would be
contrary to the proper administration of justice and the objective of full
disclosure of the evidence. [paras. 60 and 74]
It is difficult
for the parties, at the examination on discovery stage, to assess the relevancy
of the evidence, and the confidentiality undertaking helps to ensure that the
parties will be full and frank in exercising their examination on discovery
obligations.
[78] This
same rationale applies in the context of pre-trial settlement negotiations and
mediation. In Kosko v. Bijimine, 2006 QCCA 671 (CanLII), the Quebec
Court of Appeal commented on the rationale animating confidentiality
undertakings — similar to those in the context of examination on discovery — in
the context of judicial mediation:
The protection of the confidentiality of these “settlement
discussions” is the most concrete manifestation in the law of evidence of the
importance that the courts assign to the settlement of disputes by the parties
themselves. This protection takes the form of a rule of evidence or a common
law privilege, according to which settlement talks are inadmissible in
evidence.
The courts and commentators have unanimously
recognized that, first, settlement talks would be impossible or at least
ineffective without this protection and, second, that it is in the public
interest and a matter of public order for the parties to a dispute to hold such
discussions. [paras. 49-50]
[79] In
Quebec, the C.C.P. provides a mechanism for settlement conferencing
presided over by a judge of the Superior Court (art. 151.14). Article 151.16
provides that those conferences are meant to facilitate a dialogue, aimed at
exploring mutually satisfactory solutions to the dispute, and are to be held in
private. Article 151.21 more specifically provides that “[a]nything said or
written during a settlement conference is confidential”. Similar rules exist in
the common law provinces (Supreme Court Civil Rules, B.C. Reg. 168/2009,
r. 9-1(2) (offers to settle), r. 9-2(1) and (3) (settlement conferences); Alberta
Rules of Court, Alta. Reg. 390/68, r. 173 (compromise using court process);
Saskatchewan, The Queen’s Bench Rules, r. 181(3) (offer to settle), r.
191(14) and (15) (judicial pre-trials); Queen’s Bench Rules, Man. Reg.
553/88, r. 49.06(1) and (2) (offer to settle), r. 50.01(9) and (10) (judicial
pre-trials); Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 24.1.14
(mandatory mediation), r. 49.06 (offer to settle), rr. 50.09 and 50.10
(judicial pre-trial); Nova Scotia Civil Procedure Rules, r. 10.13(4)(a)
(ordinary settlement), r. 10.14(4)(a) (judicial pre-trial), and r. 10.16).
[80] Even
in the absence of a legislated rule of procedure, the common law has long
recognized that, in order to encourage parties to resolve their disputes
through settlement negotiations, those negotiations must remain confidential.
Indeed, the privilege dates back to at least the 1790s when, in Waldridge v.
Kennison (1794), 1 Esp. 143, 170 E.R. 306, Lord Kenyon C.J. observed:
. . . any admission or confession made by the party
respecting the subject matter of the action, obtained while a treaty was
depending, under faith of it, and into which the party might have been led, by
the confidence of a compromise taking place, could not be admitted to be given
in evidence to his prejudice . . . .
This approach
has translated into a rule of evidence, whereby the contents and substance of
settlement negotiations are, should a dispute ultimately proceed to trial,
inadmissible (Histed v. Law Society of Manitoba, 2005 MBCA 106, 195 Man.
R. (2d) 224, at para. 44; Canadian Broadcasting Corp. v. Paul, 2001 FCA
93, 198 D.L.R. (4th) 633). In Quebec, the Court of Appeal in Gesca held
recently that settlement negotiations held outside the framework provided by
the C.C.P. — in other words those not presided over by a judicial
mediator — similarly benefit from the protection of confidentiality (para. 47).
[81] Maintaining
the confidentiality of settlement negotiations is a public policy goal of the
utmost importance, and nothing in these reasons should be interpreted as
derogating from that position. However, it must be noted that these
confidentiality undertakings bind only the parties to settlement negotiations
and their agents. Provided a journalist has not participated in the breach of
confidentiality, a publication ban will only be appropriate in cases where the
balancing test otherwise favours non-publication.
(2) Preliminary Questions and Legal Framework
[82] As a
preliminary matter, I must address Groupe Polygone’s submission that Mr.
Leblanc, in publishing the content of the confidential settlement negotiations
between itself and the federal government, committed a civil fault. Groupe
Polygone relies on art. 36(2) of the C.C.Q.:
36. The following acts, in particular, may be considered
as invasions of the privacy of a person:
. . .
(2) intentionally intercepting or using his
private communications;
Groupe Polygone
argues that the Globe and Mail and its journalist “interfered” with its privacy
rights, and have therefore committed the civil wrong contemplated by art.
36(2). I cannot accept this submission.
[83] The
wrong contemplated by art. 36(2) in this case was committed by the government
source, whoever he or she may be, who provided Mr. Leblanc with the information
that ultimately made its way into the article published on October 21, 2008.
Nothing in the record suggests that Mr. Leblanc was anything other than a
beneficiary of the source’s desire to breach confidentiality. There is no
“interference”, as suggested by Groupe Polygone, on the part of Mr. Leblanc in
the confidential negotiations and communications of the parties. No proof was
made of any illegal acts on the part of the Globe and Mail or Mr. Leblanc leading
to the discovery of the information. Groupe Polygone’s remedy, in terms of the
commission of a civil fault, is more properly viewed as being against the
source, or its negotiating partner more generally.
[84] Moreover,
there are sound policy reasons for not automatically subjecting journalists to
the legal constraints and obligations imposed on their sources. The fact of
the matter is that, in order to bring to light stories of broader public
importance, sources willing to act as whistleblowers and bring these stories
forward may often be required to breach legal obligations in the process.
History is riddled with examples. In my view, it would also be a dramatic
interference with the work and operations of the news media to require a
journalist, at the risk of having a publication ban imposed, to ensure that the
source is not providing the information in breach of any legal obligations. A
journalist is under no obligation to act as legal adviser to his or her sources
of information.
[85] Such a
legal policy is consistent with what has come to be known as the U.S. “Daily
Mail principle”. In Smith v. Daily Mail Publishing Co., 443 U.S. 97
(1979), the United States Supreme Court held that if a newspaper obtains
truthful information about a matter of public importance, and does so in a
lawful manner, then, absent a higher order public interest, the state cannot
punish the publication of that information. This principle was extended, in Bartnicki
v. Vopper, 532 U.S. 514 (2001), to situations where the published
information about an important public issue had been unlawfully intercepted,
and where the press knew or ought to have known that the information had been
intercepted by a third party, but had not participated in the interception.
Justice Stevens, for the majority, held that “a stranger’s illegal conduct does
not suffice to remove the First Amendment shield from speech about a matter of
public concern” (p. 535).
[86] I must
also address Groupe Polygone’s submission that de Grandpré J.’s order was not a
publication ban and, therefore, the Dagenais/Mentuck framework is both
inapplicable and inappropriate (see Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442).
Groupe Polygone says that the remedy sought was a ceasing of a serious
violation of privacy and reputation, caused by the media. I cannot accept this
submission.
[87] De
Grandpré J.’s order must be assessed for what it looks like, sounds like and in
fact is: a court-ordered publication ban. As this Court held in Vancouver
Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, the Dagenais/Mentuck
framework “is equally applicable to all discretionary actions by a trial judge
to limit freedom of expression by the press during judicial proceedings” (para.
31). In my view, Groupe Polygone takes too narrow a view of “judicial
proceedings”. The impugned order in this case was made in the context of
discontinuance proceedings incidental to a revocation motion. While its target
or substance — the content of the parties’ settlement negotiations — is indeed
not a judicial proceeding, that is no matter. The order itself was made in the
context of a judicial proceeding, and had the effect of infringing on the Globe
and Mail’s and Mr. Leblanc’s respective s. 2 (b) rights. The order
was issued in a civil proceeding, is a publication ban and therefore engages
s. 2 (b) Canadian Charter rights.
[88] Groupe
Polygone cites a number of trial level cases from across the country, which it
says demonstrate that the Dagenais/Mentuck framework is both
inappropriate and inapplicable in this context. Using Dagenais/Mentuck
in this case, Groupe Polygone says, would be unprecedented. I disagree. All of
the jurisprudence cited by Groupe Polygone is distinguishable on the basis of
having been decided before the release of Dagenais (Peat Marwick
Thorne v. Canadian Broadcasting Corp. (1991), 5 O.R. (3d) 747 (Gen. Div.); Amherst
(Town) v. Canadian Broadcasting Corp. (1994), 133 N.S.R. (2d) 277 (C.A.));
the nature of the legal issue (Canada (Canadian Transportation Accident
Investigation and Safety Board) v. Canadian Press, [2000] N.S.J. No. 139
(QL) (S.C.): the media breached a statutory confidentiality obligation, and
challenged the constitutionality of the provision itself); or the facts (Calgary
Regional Health Authority v. United Western Communications Ltd., 1999 ABQB
516, 75 Alta. L.R. (3d) 326: the media were in physical possession of
confidential hospital records, of which the hospital sought the return, and the
case involved the safety and security concerns of doctors who performed
abortions). K. v. K. (E.), 2004 ABQB 847, 37 Alta. L.R. (4th) 118,
involved the review of a previously ordered publication ban, and did in fact
analyse the issue by way of the Dagenais/Mentuck framework.
[89] De
Grandpré J.’s order was a discretionary one, made pursuant to his authority
under art. 46 of the C.C.P., and had the effect of limiting the s. 2 (b)
rights of Mr. Leblanc and the Globe and Mail. He therefore erred in not
applying the Dagenais/Mentuck framework prior to making the order.
(3) Application of the Dagenais/Mentuck
Framework
[90] I now
move on to a consideration of the Dagenais/Mentuck framework:
(a) Is the order necessary in order to
prevent a serious risk to the proper administration of justice because
reasonably alternative measures will not prevent the risk?
(b) Do the salutary effects of the
publication ban outweigh the deleterious effects on the rights and interests of
the parties and the public, including the right to free expression and the
efficacy of the administration of justice?
I will assess
each of these elements in turn.
[91] The
article that prompted de Grandpré J. to order the publication ban was published
on October 21, 2008. However, on August 27, 2008, lawyers for Groupe Polygone
filed with the Registrar of the Quebec Superior Court a motion requesting a
change in the trial dates. The trial between Groupe Polygone and the Attorney
General had originally been set to run between September and December 2008. The
principal reason given for the requested postponement was that the parties
wanted to attempt settlement negotiations. It was anticipated that the
negotiations would be long and complex, and therefore not likely to be
completed before September 2008. The motion was granted on October 14, 2008, by
Wery A.C.J., [translation] “[f]or
the reasons set out in the motion”. Therefore, when the impugned article was
published on October 21, 2008, the fact that Groupe Polygone and the
Attorney General were engaged in settlement negotiations was already a matter
of public record, by virtue of the public court file. It is only the contents
of those negotiations — the amount being discussed and the federal government’s
position with respect to it — that could be said to be confidential.
Furthermore, the Attorney General has authorized disclosure, by virtue of
publication on the Public Works and Government Services Canada website, of the
full terms of any settlement that it reaches in Sponsorship Scandal‑related
litigation.
[92] Groupe
Polygone also argues that its reputation has been irreparably harmed in the
eyes of the public, who will interpret Groupe Polygone’s willingness to engage
in settlement negotiations as an admission of fault or liability. Again, this
submission cannot be supported by the record. Firstly, Groupe Polygone offers
no evidence of this specific harm. Secondly, and more importantly, the fact
that the parties intended to pursue settlement negotiations was already a
matter of public record, by virtue of Groupe Polygone’s own motion in the
Superior Court to postpone the trial dates.
[93] I am
not prepared to accept Groupe Polygone’s bald assertions, without more, that
its ability to negotiate a settlement with the federal government has been
irreparably harmed. That it is now in the public domain that the parties are
attempting to negotiate a settlement cannot affect the discussions between the
parties themselves. Moreover, as I indicated above, at the time when Mr.
Leblanc’s article was published, the fact that the parties were engaged in
settlement negotiations was already a matter of public record, because it was
the reason given by Groupe Polygone as the basis for a request to postpone the
trial dates. Groupe Polygone suspended its negotiations on its own initiative.
[94] Groupe
Polygone has offered no tangible proof that its ability to effectively engage
with the government has been irreparably harmed. Nor has it offered any
evidence or proof of a serious risk to the administration of justice. Groupe
Polygone’s failure to do so is not surprising, given that it did not
specifically apply for the ban imposed by de Grandpré J. But even if the
parties did not ask for the production of evidence and did not apply for a
remand of the case to the motion judge, the positions of both the Globe and
Mail and Groupe Polygone with respect to the propriety of the ban were
prejudiced by the manner in which de Grandpré J. chose to proceed. The conduct
of the matter by de Grandpré J. deprived them of the opportunity, at the time,
to make argument about the application of the Dagenais/Mentuck test.
[95] I note
again that the breach of confidentiality in this case was made not by Mr.
Leblanc, but by someone bound by the undertaking. Other avenues available to
Groupe Polygone, which would not have any effect on freedom of the press, could
have been directed against its negotiating partner, in the form of an
injunction or an order for costs. Some other form of relief could also have
been directed against the party directly responsible for the breach in this
case, if its identity could be accurately established. Finally, the ban imposed
by de Grandpré J. is, if nothing more, clearly overbroad. It is a blanket
prohibition, and no indication was given as to when it would expire.
[96] Even
if I were convinced that the publication ban was necessary to prevent a serious
risk to the administration of justice, I would not be convinced that its
salutary effects outweigh its deleterious effects. The salutary effects of the
ban are, primarily, a cessation of the breach of Groupe Polygone’s s. 5 Quebec
Charter privacy rights and, indirectly, a breach of its right to negotiate
a settlement confidentially. I say indirectly, of course, because the media are
not the party responsible for the breach of confidentiality. However, I am not
convinced that such a breach, in the circumstances of this case, led to a
failure in the negotiations and can therefore justify a publication ban.
[97] On the
other hand, the deleterious effects of the ban are serious. The Globe and Mail
received information about settlement negotiations involving, as a party, the
Government of Canada, which is seeking to recover a considerable amount of
taxpayer money, on the basis of an alleged fraud against a government program.
There is clearly an overarching public interest in the outcome of this dispute,
and barring the Globe and Mail from publishing the information that it obtained
in this regard would prevent the story from coming to light. In other words,
upholding de Grandpré J.’s order would be to stifle the media’s exercise of
their constitutionally mandated role.
[98] While
not in any way wanting to diminish the importance that this Court places on the
confidentiality of settlement negotiations, I again emphasize that the
confidentiality undertakings are a binding only on the parties to negotiation.
The obligation does not, and cannot, extend to the media. Neither Mr. Leblanc
nor the Globe and Mail did anything — illegal or otherwise — to obtain the
information published in the article. Mr. Leblanc did not even have to
make any requests in this regard. As discussed earlier in these reasons, I am
reluctant to endorse a situation where the media or individual journalists are
automatically prevented from publishing information supplied to them by a
source who is in breach of his or her confidentiality obligations. This would
place too onerous an obligation on the journalist to verify the legality of the
source’s information. It would also invite considerable interference by the
courts in the workings of the media. Furthermore, such an approach ignores the
fact that the breach of a legal duty on the part of a source is often the only
way that important stories, in the public interest, are brought to light.
Imposing a publication ban in this case would be contrary to all these
interests.
[99] As we
have seen, on the factual record before us, the ban was not necessary to
prevent a serious risk to the proper administration of justice. Moreover, the
salutary effects of the publication ban imposed in the court below do not
outweigh its deleterious effects. I would thus allow the appeal and quash the
publication ban imposed by de Grandpré J.
[100]
For all these reasons, the Globe and Mail’s appeal is allowed, with
costs throughout, and the order prohibiting the publication of anything
relating to the settlement negotiations between the parties is quashed, with
costs throughout.
V. The Discontinuance Proceedings (32975)
[101]
Given the appellant’s success in the other two appeals, it is
unnecessary to consider this issue. The appeal from the dismissal of the
discontinuance proceeding is moot and is dismissed, without costs.
VI. Disposition
[102]
For these reasons, the appeals with respect to the confidentiality of
journalist sources (33114) and the publication ban (33097) are allowed, with
costs throughout. The issue of journalist-source privilege is remitted to the
Superior Court for consideration in light of these reasons. The order
prohibiting the publication of information relating to the settlement
negotiations is quashed. The appeal concerning the discontinuance proceeding
(32975) is dismissed as moot, without costs.
Appeals 33114 and 33097 allowed with costs. Appeal 32975
dismissed without costs.
Solicitors for the appellant: Davies Ward Phillips &
Vineberg, Montréal.
Solicitor for the respondent the Attorney General of
Canada: Attorney General of Canada, Montréal.
Solicitors for the respondent Groupe Polygone Éditeurs
inc.: Stikeman Elliott, Montréal.
Solicitors for the interveners Fédération professionnelle des
journalistes du Québec, Ad IDEM/Canadian Media Lawyers Association, Astral
Media Radio Inc., Groupe TVA inc., La Presse ltée, Médias Transcontinental
inc., the Canadian Broadcasting Corporation, Gesca ltée and Joël‑Denis
Bellavance: Fasken Martineau DuMoulin, Montréal.
Solicitors for the intervener the Canadian Civil Liberties
Association: Osgoode Hall Law School of York University, North York,
Ontario.
Solicitors for the intervener Barreau du Québec: Joli‑Cœur,
Lacasse, Geoffrion, Jetté, Saint‑Pierre, Québec.
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