Ontario Court of Appeal rules on police access to a press source, declines to take bait on bloggers

I was vaguely kicking around a notion to blog about this ruling in R. v. National Post since the pressing by the police on the boundary of press privilege has become more urgent and more widespread in recent years but fortunately for me (and potential readers of my half-assed take) Dan Michaluk had got there first.

Both of the following issues are not going away, however, and I suspect one day soon a Court is going to be forced to tackle them:

[98] The Crown submits that in so finding the reviewing judge made two errors. First, it contends that in today’s society we have no principled basis to distinguish between those journalists who are entitled to confidential source relationships and those who are not. Today, many persons, especially by using the internet, may be called “journalists” or “the press” because they disseminate information to the public, yet may not merit the journalist-confidential source privilege. Second, the Crown contends that we should not sedulously foster a relationship that the respondents are using to shield a possible wrongdoer from investigation and prosecution for a serious criminal offence. Promoting this relationship between McIntosh and X does not advance the public good; indeed the Crown says that doing so is antithetical to the core values underlying s. 2(b) of the Charter – using the constitutional guarantee of freedom of the press not to get at the truth, but to subvert it.

[99] We reject the Crown’s first contention. The case-by-case approach to privilege does not require us to establish the boundaries of legitimate journalism. The National Post is a recognized national news organization and McIntosh is a respected journalist. It can hardly be disputed that they fall within the class of persons who may be entitled to the benefit of journalist-confidential source privilege.

[100] The Crown’s second contention raises a difficult question, but one that we do not need to resolve to decide this appeal. Essentially, the question under the third Wigmore criterion is whether the relationship should be characterized broadly as a journalist-confidential source relationship, or more narrowly as a journalist-criminal wrongdoer relationship. The reviewing judge used the broad approach; the Crown advocates the more narrow one.

At least they didn't say the Post is a respected organisation just as McIntosh was a respected journalist. Ascribing "respected" to the Post might have gotten some people very cross. More seriously however, the Court offered no guidance as to what constitutes "recognised" and "respected" apart from perhaps "we know it when we see it".