Shielding the Public Interest: What Canada Can Learn from the United States in the Wake of National Post and Globe & Mail

Abstract: In Canada and the United States, freedom of the press is among the most fundamental rights of citizens; yet, the exact contours of this freedom are still hotly debated. One contested question concerns the right of a journalist to protect the identity of his or her confidential sources. In Canada, two recent Supreme Court decisions established that a journalist may have a privilege to protect the identity of his or her confidential sources. This Note argues that the case-by-case determination with a presumption in favor of disclosure that these two cases establish is insufficient to protect the strong interest in a free press, which is bolstered by the ability to use confidential sources. Rather, Canada should legislatively enact a shield law based on those of many U.S. states in which the privilege is extended broadly and is nearly absolute, with only limited circumstances in which the state can compel disclosure.IntroductionFor years, Canada has been one of the countries leading the world in freedom of the press.1 In 2010, Reporters Without Borders ranked Canada twenty-first out of 178 nations in its annual survey, the Press Freedom Index.2 Indeed, in the years between 2002 and 2010, Canada never fell below the twenty-first position on this survey.3Despite its highly developed freedom of the press, Canadian jour- nalists have experienced certain setbacks in their quest for full freedom of the press.4 For example, in 2010, the Supreme Court of Canada up- held a broad ban against the publication of information arising out of bail hearings.5 In 2009, a federal court in Canada limited public access to information when it denied a professor-journalist's request to review government information about human rights in Afghanistan.6 Further, after a 2004 provision of the Criminal Code allowed journalists to be a source of evidence in certain criminal investigations, several journalists had to fight to keep their notes and photographs private.7Part I of this Note lays out the facts of several key cases from the highest courts in Canada and the United States regarding the journal- ist-source privilege. Part II discusses the importance of confidential sources and the current state of the law with regard to a privilege for journalists to protect the identity of their confidential sources under Canadian and U.S. law. Part III shows how the National Post standard is insufficient to protect the journalist-source relationship and then pro- poses that the Parliament of Canada ("Parliament") legislatively enact a shield law to address these issues. It goes on to use the large body of work about the journalist-source privilege in the United States to dis- cuss how Parliament should address two of the biggest issues regarding shield laws: the extent of the privilege and to whom the privilege is ex- tended.I. BackgroundA. The Tenuousness of Confidential Sources in CanadaOne particular aspect of freedom of the press has recendy seen a great deal of legal flux: the privilege of journalists to maintain the con- fidentiality of their sources.8 Over the past several years, various Cana- dian journalists have been compelled to turn over their confidential sources.9 Two recent cases on this issue that found their way to the Ca- nadian Supreme Court are It v. National Post10 and Globe & Mail v. Can- ada.11 In the first case, the Canadian Supreme Court decided that the privilege of journalists to keep their sources confidential is not an es- sential part of the right to freedom of the press guaranteed by the Ca- nadian Charter of Rights and Freedoms (the Charter).12 Instead, the Canadian Supreme Court held that there must be a case-by-case inquiry that balances the interest of a free press with the state's interest in the disclosure of information at trial.13 The second case on this issue hand- ed down in 2010 followed National Post and found that the correct pro- cedure for analyzing whether a source should remain confidential is a case-by-case balancing test. …