A reporter for the National Post learned that then-Prime Minister Chrétien’s had contacted a federally-funded bank to urge it to approve a loan to a hotel in his home riding. The reporter wrote an article on the story, which was confirmed by Chrétien.
After that article, the reporter received a document anonymously in the mail that appeared on its face to be a bank record of a loan from the hotel to a Chrétien family investment company. If it were genuine, it would mean Chrétien had a serious conflict of interest when he contacted the bank president. The bank, the PMO and Chrétien’s lawyer all told the reporter that the document was a forgery. An anonymous source “X” confirmed to the reporter that he or she was the one who mailed the document to the reporter, but explained that he or she had received it in the mail anonymously him/herself and believed it to be genuine.
The bank complained to the RCMP about the alleged forgery, and the RCMP successfully applied ex parte for a search warrant to seize the original document and envelope and submit it for testing. The National Post applied to quash the warrant. The majority of the Court upheld it.
The majority rejected granting a class privilege to journalists and their sources, and instead adopted the case-by-case model of determining privilege using the “Wigmore criteria”. The first two criteria, that the communication originates in confidence that the identity of the informant will not be disclosed and that confidence is essential to the relationship, were not controversial. The third, that the relationship should be “sedulously fostered” in the public good, introduced flexibility for the court to evaluate different sources and different types of “journalists”, from bloggers to National Post journalists. The fourth required weighing the public interest in the instant case as between the protection of the source and the public getting at the truth. The criteria must be analyzed in light of society’s evolving values, and the media has the burden of meeting all four criteria to establish journalistic source privilege. In this case, the public interest outweighed protection, and the documents were physical evidence that should be disclosed.