Friday, May 07, 2010

Supreme Court Gives National Post One Upside the Head

Remember the forged documents the National Stain tried to use against Jean Chretien? Chances are you don't recall what happened to them afterward. Well NatPo has been fighting a fierce rearguard action to keep the documents and the envelope they came in out of the hands of police seeking to investigate the forgery and possible associated crimes.

NatPo really dug in its heels on this one, winning at the provincial level, losing in the Court of Appeal and today, finally, getting slapped down by the Supreme Court of Canada. The National Post must turn over the documents and envelope so the RCMP can conduct forensic tests on them that may reveal the identity of the forger. Here are a few excerpts from the 7-judge majority ruling:

...Freedom to publish the news necessarily involves a freedom to gather the news, but each of the many important news gathering techniques, including reliance on secret sources, should not itself be regarded as entrenched in the Constitution. The protection attaching to freedom of expression is not limited to the “mainstream media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest. To 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 (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy. The law needs to provide solid protection against the compelled disclosure of secret sources in appropriate situations, but the history of journalism in this country shows that the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source in accordance with the principles of common law privilege would not in general violate s. 2(b).

... A promise of confidentiality will be respected if: the communication originates in a confidence that the identity of the informant will not be disclosed; the confidence is essential to the relationship in which the communication arises; the relationship is one which should be sedulously fostered in the public good; and the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. This approach properly reflects Charter values and balances the competing public interests in a context‑specific manner.

...The alleged offences are of sufficient seriousness to justify the decision of the police to investigate the criminal allegations. The physical evidence is essential to the police investigation and likely essential as well to any future prosecution. While it is appropriate under this criterion to assess the likely probative value of the evidence sought, the reviewing judge ought not to have pre‑empted the forensic investigation by seemingly prejudging the outcome without first considering all the relevant factors in her assessment. DNA analysis is capable of producing results even under exceptionally unpromising circumstances. The police should not be prevented from pursuing well‑established modes of forensic analysis of relevant physical evidence on the basis that in the end such analysis may prove to be unsuccessful.

Read the entire decision here

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