supreme court of canada - the globe and mail · 2010-10-21 · henri a. lafortune inc. 2005 limoges...

Henri A. Lafortune Inc. 2005 Limoges Street 450 442-4080 – Tel. Longueuil, Québec J4G 1C4 450 442-2040 – Fax www.halafortune.ca [email protected] L-3172-09 / L-3190-09

Files No. 32975 and 33114

SUPREME COURT OF CANADA

File No. 33114

(ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT OF QUÉBEC)

BETWEEN:

THE GLOBE AND MAIL, A DIVISION OF CTV GLOBEMEDIA PUBLISHING INC.

APPELLANT (Petitioner in the Superior Court)

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ATTORNEY GENERAL OF CANADA RESPONDENT

(Plaintiff in the Superior Court)

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LE GROUPE POLYGONE ÉDITEURS INC.

RESPONDENT (Defendant in the Superior Court)

File No. 32975

(ON APPEAL FROM A JUDGMENT OF THE QUÉBEC COURT OF APPEAL)

BETWEEN:

THE GLOBE AND MAIL, A DIVISION OF CTV GLOBEMEDIA PUBLISHING INC.

APPELLANT (Appellant)

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ATTORNEY GENERAL OF CANADA RESPONDENT

(Respondent)

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LE GROUPE POLYGONE ÉDITEURS INC.

RESPONDENT (Respondent)

APPELLANT’S FACTUM

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William Brock, Esq. Brandon Wiener, Esq. Davies Ward Phillips & Vineberg LLP 26th Floor 1501, McGill College Avenue Montréal, Québec H3A 3N9

514 841-6400 – Tel. 514 841-6499 – Fax

[email protected] [email protected]

Counsel for the Appellant

Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP Barristers and Solicitors Suite 2600 160 Elgin Street Ottawa, Ontario K1P 1C3

613 786-0212 – Tel. 613 788-3500 – Fax

[email protected]

Agent for the Appellant

John Sims, Q.C. Deputy Attorney General of Canada Claude Joyal, Esq. Simon Ruel, Esq. Department of Justice 5th Floor 200 René-Lévesque Blvd. West Montréal, Québec H2Z 1X4

514 283-1895 – Tel. 514 283-3856 – Fax


Counsel for the Respondent, Attorney General of Canada

Christopher M. Rupar Attorney General of Canada Suite 1212 East Tower Bank of Canada Building 234 Wellington Street Ottawa, Ontario K1A 0H8

613 941-2351 – Tel. 613 954-1920 – Fax

[email protected]

Agent for the Respondent, Attorney General of Canada

Louis-P. Bélanger, Esq. Patrick Girard, Esq. Stikeman Elliott LLP Suite 4000 1155 René-Lévesque Blvd. West Montréal, Québec H3B 3V2

514 397-3078 – Tel. 514 397-3578 – Fax


Counsel for the Respondent, Le Groupe Polygone Éditeurs Inc.

Pierre Landry, Esq. Noël et associés LLP 111 Champlain Street Gatineau, Québec J8X 3R1

819 771-7393 – Tel. 819 771-5397 – Fax

[email protected]

Agent for the Respondent Le Groupe Polygone Éditeurs Inc.

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TABLE OF CONTENTS

APPELLANT’S FACTUM Page INTRODUCTION .........................................1

PART I - STATEMENT OF FACTS .........................................2

I. DANIEL LEBLANC, MA CHOUETTE AND THE "SPONSORSHIP SCANDAL" .........................................2

II. THE EXAMINATION JUDGMENTS .........................................3

III. THE REVOCATION MOTION .........................................4

IV. THE OBJECTIONS JUDGMENT .........................................6

V. THE DISCONTINUANCE JUDGMENT .........................................8

VI. THE MOTION TO INTRODUCE FRESH EVIDENCE .........................................9

PART II - QUESTIONS IN ISSUE .........................................9

PART III - ARGUMENT .......................................10

I. THE GOVERNING PRINCIPLES .......................................10

A. Freedom of the Press .......................................10

i. The Nature and Scope of Freedom of the Press .......................................10

ii. The Right Not to Disclose the Identity of a Confidential Source .......................................12

iii. The Application of the Right .......................................17

B. The Right Not To Disclose in Judicial Proceedings and the Requisite Balancing .......................................20

C. Wigmore and the Law of Evidence in Québec .......................................28

i. The Wigmore Doctrine .......................................28

ii. The Law of Evidence in Québec .......................................29

iii. The Modified Wigmore Doctrine .......................................33

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TABLE OF CONTENTS

APPELLANT’S FACTUM Page II. THE ERRORS OF THE Q.S.C. JUDGE AND THE

PROPER APPLICATION OF THE GOVERNING PRINCIPLES .......................................34

III. THE DISCONTINUANCE APPEAL .......................................38

A. The Right to Discontinue .......................................38

B. The Error of the Q.S.C. Judge .......................................38

C. Appropriate Relief .......................................39

PART IV - ORDER SOUGHT CONCERNING COSTS .......................................40

PART V - ORDER SOUGHT .......................................40

PART VI - TABLE OF AUTHORITIES .......................................41

PART VII - STATUTES, REGULATIONS, RULES (Extracts)

Code of Civil Procedure, R.S.Q. c. C-25, art. 262 and 264 ......................................46

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 2 (b) and 32(1) ......................................49

Charter of human rights and freedoms, R.S.Q. c. C-12, s. 3, 5, 9, 9(2), 9.1, 23, 35, 54 and 55

- English version ......................................54

- French version ......................................61

Civil Code of Quebec, 1991, c. 64, art. 2857 and 2858 (as amended) ......................................68

Civil Code of Lower Canada, 1865, c. 41, art. 1206 and 2712 (as amended) ......................................71

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 10 ......................................76

Human Rights Act 1998 (U.K.), 1998, c. 42, s. 1(1) ......................................78

- 1 - Appellant's Factum Introduction _______________________________________________________________________

INTRODUCTION

"All that is necessary for evil to triumph is for good men to do nothing"

– Edmund Burke

1. History is replete with examples of men and women who have stepped forward to

disclose, often to journalists, misconduct or even abuse of power on the part of

government officials, corporate executives and others. They have done so in some

cases at significant risk to themselves, relying on a promise of anonymity and the

belief that such promise would be respected.

2. The press, in turn, have played an indispensable role in the investigation and

reporting of the misconduct and abuse of power brought to light by these sources.

Bob Woodward and Carl Bernstein's historic reporting on the Watergate scandal,

nourished behind the scenes by an anonymous source named "Deep Throat",1 is

perhaps the most renowned example. In the United Kingdom, a scandal

concerning the misuse of permitted allowances and expenses claimed by some

parliamentarians is currently unfolding, having already led to the resignation,

amongst others, of the Speaker of the House of Commons, the whole as a result

of information provided by a source who remains confidential.2

3. This Court – as well as the courts of other Western countries – have recognized

time and time again that the proper functioning of a democracy requires, inter alia,

that public institutions operate transparently, and investigative journalism –

concomitant in some cases with confidentiality undertakings – contributes

significantly to that transparency.

1 "Deep Throat", in 2005, revealed himself to be Mark Felt, who was at the relevant

time the Associate Director of the United States Federal Bureau of Investigation.

2 The information was delivered to The Daily Telegraph by a man who revealed himself to be John Wick, a former Special Air Service agent; however, Wick acted on behalf of a source who remains anonymous.

- 2 - Appellant's Factum Introduction _______________________________________________________________________

4. In these Appeals, this Court will be called upon to decide whether Daniel Leblanc

("Leblanc"), a reporter for the Appellant, The Globe and Mail, a division of

CTVglobemedia Publishing Inc. (the "G&M"), is required to answer questions

which would reveal or tend to reveal the identity of a confidential source to whom

he has provided an undertaking of confidentiality – where the information provided

by that source led to the revelation of perhaps the most infamous political

wrongdoing in recent Canadian history.

5. In some cases, the right not to disclose a source's identity may conflict with some

other important societal value or individual right, such as safeguarding public

health and safety, investigating and prosecuting criminality or affording an accused

in a criminal prosecution the ability to make full answer and defence. It may not be

clear in all cases where exactly the line is to be drawn.

6. The matter at bar however presents no such difficulty. To require disclosure of a

source's identity because that may be an easy way for a party to elicit information

that may not be relevant, let alone necessary, to its limitation defence in a civil

action involving a monetary claim to which neither the journalist nor his employer

is even a party, would be, in effect, to set the lowest possible bar for permitted

violations and would render any right to protect the identity of a confidential source

nugatory.

PART I - STATEMENT OF FACTS

I. DANIEL LEBLANC, MA CHOUETTE AND THE "SPONSORSHIP SCANDAL"

7. Following the very close result of the independence referendum in Québec on

30 October 1995, the federal Cabinet decided to counteract the sovereignty

movement by taking steps to make the federal presence more visible across

Canada and particularly in Québec through the "Sponsorship Program".

8. Based largely on information derived from a confidential source, now known as

Ma Chouette, Leblanc wrote a series of newspaper articles with respect to the

"Sponsorship Program", revealing illicit and even illegal activities in the

- 3 - Appellant's Factum Statement of Facts _______________________________________________________________________

administration of that program, including the misuse and the misdirection of public

funds intended for government advertising in Québec.3

9. Eventually, the Commission of Inquiry into the Sponsorship Program and

Advertising Activities (the "Gomery Commission") was established by order in

council in order to investigate what became colloquially known as the

"Sponsorship Scandal". In reference to Leblanc, the Gomery Commission's report

stated that:

Public disclosure of the Sponsorship Program was the result of efforts by a diligent journalist whose access to information requests resulted in knowledge about the Program, to the public and parliamentarians alike, for the first time. This serves to illustrate the role that an effective access to information regime can play, enabling a more informed public and a vigilant opposition in Parliament. (p. 431)4 [emphasis added]

II. THE EXAMINATION JUDGMENTS

10. Following the release of the Gomery Commission's report, the Respondent the

Attorney General of Canada (the "A.G.C.") instituted proceedings before the

Québec Superior Court (the "Q.S.C.") against, inter alia, the Respondent, Le

Groupe Polygone Éditeurs Inc. ("Polygone"), seeking damages and the resolution

of its sponsorship contracts with Polygone.5

11. One of the defences raised by Polygone to this action is that the A.G.C.'s claim is

statute-barred. Polygone is seeking to establish the identity of Ma Chouette

presumably in the hope that she may be able to provide evidence as to the time at

3 Judgment of Dalphond J.A. dated 8 September 2008, Appellant's Joint Record

("A.R."), p. 32, para. 3.

4 Commission of Inquiry into the Sponsorship Program and Advertising Activities, Who is Responsible?: Fact Finding Report (Ottawa: Public Works and Government Services Canada, 2005), Appellant's Joint Book of Authorities ("A.B.A."), vol. II, tab 34.

5 Judgment of Dalphond J.A. dated 8 September 2008, A.R., p. 33, para. 4


which the Government would have acquired knowledge of the facts giving rise to

its claim against Polygone.6

12. In May and June 2007, at the request of Polygone, and without notice to the G&M,

the Q.S.C. ordered twenty-two (22) individuals:

(a) to disclose, by way of written examination, whether or not they had given

information to Leblanc about the Sponsorship Scandal and whether or not

they were the confidential source known as Ma Chouette (the

"Examination Judgments");7 and

(b) not to disclose to anyone the existence of the written examination or their

contents (the "Confidentiality Judgments").8

III. THE REVOCATION MOTION

13. Upon learning of the Examination Judgments, former counsel for the G&M made a

motion to revoke and set aside those judgments and for the issuance of an order

that any evidence gathered pursuant thereto be excluded from the court record, on

the grounds that they constituted a collateral attack on Leblanc and the G&M's

freedom of expression which includes the right to protect the identity of its

confidential sources (the "Revocation Motion").9

14. The Revocation Motion was heard on 26 August 2008. At that hearing, Leblanc

testified that the identity of his source, now known as Ma Chouette, was

confidential and that a relationship of trust had developed between them over time:

6 Judgment of Dalphond J.A. dated 8 September 2008, A.R., p. 33, para. 5

7 Examination Judgment of 27 June 2007, A.R., pp. 16 et seq. Only the June Examination Judgment has been made available to the G&M’s current counsel at this time and is reproduced in the A.R.

8 Confidentiality Judgments, A.R., pp. 19 et seq.

9 Revocation Motion (without affidavit or exhibits) dated 3 April 2008, A.R., pp. 24 et seq.


[…] et à un moment donné, il y a une informatrice qui m'a appelé comme le premier juin deux mille (2000), donc un téléphone à mon bureau et, ensuite, on a eu des communications surtout par courriel.

Donc, c'est une informatrice qui… pendant très longtemps, je ne connaissais pas son identité, qui, dès le départ, ne m'a pas dit son nom, qui m'a fait comprendre qu'elle ne voulait pas me dire son nom, qui, dans un des premiers courriels, a dit: "Ça reste entre nous." C'est pas une procédure normale qu'elle faisait de parler à des journalistes de façon anonyme.

Donc, dès le départ, il y a un anonymat, il y a une confidentialité, il y a une confiance qui s'établit avec le temps […]10

15. Leblanc also stated that Ma Chouette contributed significantly to his reporting of

the "Sponsorship Scandal":

[…] et ça devient quand même quelqu'un qui me fournit des pistes et surtout qui me donne une compréhension des enjeux derrière le programme des commandites. Et c'est ça qui nourrit, si je peux dire, mon enquête jusqu'au moment où ça devient… avec les rapports de la vérificatrice générale, les rapports manquants de Groupe Action, et caetera, en deux mille deux (2002).11

16. Leblanc further explained that he believed that the information that Ma Chouette

provided to him was credible,12 and that before publishing his book called Nom de

Code: MaChouette – L'enquête sur le scandale des commandites (the "Book"),13

he had assured her that he would preserve her anonymity and had ensured that

she would agree to render the information contained therein public.14

10 Transcript of hearing of 26 August 2008, p. 43, A.R., p. 52.



13 Daniel Leblanc, Nom de code: MaChouette: l'enquête sur le scandale des commandites (Outremont, Québec: Éditions Libre Expression, 2006).

14 Transcript of hearing of 26 August 2008, pp. 47-48, A.R., pp. 56-57.


IV. THE OBJECTIONS JUDGMENT

17. During their cross-examination of Leblanc, Polygone (represented by Me Louis P.

Bélanger) and the A.G.C. (then represented by Me Sylvain Lussier) asked the

following seven (7) questions (the "Questions") which were objected to by then

counsel for the G&M:

(a) Me Louis P. Bélanger : Est-ce que vous avez eu des contacts avec

Ma Chouette après le dix-huit (18) mai deux mille sept (2007)?

(b) Me Louis P. Bélanger : Monsieur Leblanc, avez-vous des contacts avec

Ma Chouette après le mois de janvier deux mille huit (2008), soit après que

vous ayez pris connaissance de l'existence des ordonnances dans le

présent dossier?

(c) Me Louis P. Bélanger : Monsieur Leblanc, est-ce que Ma Chouette est l'une

des personnes visées par les ordonnances auxquelles s'attaque la requête

du Globe and Mail?

(d) Me Louis P. Bélanger : Monsieur Leblanc, au moment où vous avez

entrepris des contacts avec Ma Chouette à compter du premier (1er) juin

deux mille (2000), est-ce que Ma Chouette avait travaillé ou travaillait au

sein de l'appareil gouvernemental fédéral?

(e) Me Louis P. Bélanger : Monsieur Leblanc, le cas échéant, dans quel

ministère Ma Chouette oeuvrait-elle ou avait-elle oeuvré à l'époque où vous

avez initié les contacts avec elle? Pour un ministère fédéral, bien entendu.

(f) Me Louis P. Bélanger : Et finalement, monsieur Leblanc, pouvez-vous, le

cas échéant, si la personne travaillait au gouvernement fédéral, nous

donner une indication très générale qui ne permet pas d'identifier son

poste, mais qui donne une idée du niveau hiérarchique, peut-être en

utilisant le fait qu'elle était de haut, moyen ou bas niveau hiérarchique dans

l'appareil gouvernemental?


(g) Me Sylvain Lussier : Quand vous répondez que la personne... si vous

répondez que la personne est dans l'appareil gouvernemental, je voudrais

savoir si c'est à titre de fonctionnaire ou à titre de personnel politique?15

18. The grounds for the G&M's objections were that:

(a) the Questions were not relevant to the Revocation Motion; and/or

(b) the G&M had the right to protect the identity of its confidential source.16

19. The Q.S.C. judge dismissed the objections and ordered Leblanc to answer:

LA COUR : Bien, à ce moment-là, je vais toutes les rejeter pour le même... le seul motif que ce que j'ai identifié tantôt [parce que les questions sont pertinentes]. D'accord?

Me LOUIS P. BÉLANGER : Parfait.

LA COUR : Ça va accélérer les choses.

Me MARK BANTEY : Mais... donc, vous les rejetez seulement...

LA COUR : Sur la base que c'est pertinent d'obtenir les réponses aux questions, peu importe le...

Me MARK BANTEY : Peu importe le privilège.

LA COUR : ... le privilège qui est invoqué par le témoin. D'accord? Alors, j'ai fait vite, vite, vite l'analyse des quatre (4) critères de...

Me SYLVAIN LUSSIER : Wigmore.

LA COUR : ... de Wigmore puis j'en viens à la conclusion que, dans les circonstances, c'est préférable que la preuve entre dans le dossier. Ça va? (our emphasis)17 (the "Objections Judgment")

15 Transcript of hearing of 26 August 2008, A.R., pp. 54 et seq.

16 Transcript of hearing of 26 August 2008, A.R., pp. 54 et seq.

17 Judgment of de Grandpré J.S.C. dated 26 August 2008, A.R., pp. 13-14.


20. On 8 September 2008, leave to appeal against the Objections Judgment was

denied by a single judge of the Québec Court of Appeal (the "Q.C.A.") on the

basis that that Court had no jurisdiction to entertain the proposed appeal.18

21. On 6 April 2009, after retaining its current counsel, the G&M sought leave to

appeal the Objections Judgment directly to this Court. On 21 May 2009, leave to

appeal from that judgment was granted (Court file #33114) (the "Objections

Appeal").

V. THE DISCONTINUANCE JUDGMENT

22. On 15 September 2008, former counsel for the G&M filed a notice of

discontinuance of the Revocation Motion because, as he explained in a letter to

the Q.S.C. judge:

My client has no choice but to withdraw its motion for revocation of judgment. On the one hand, its reporter Daniel Leblanc cannot answer the questions put to him as he would be in breach of his confidentiality agreement with his source. On the other, The Globe and Mail cannot place its reporter in a position where he would possibly be in contempt of the Court.19

23. Former counsel for the G&M further filed an intervention on behalf of the G&M and

Leblanc on 15 September, in order to ensure that they at the very least would

have "the right to contest any further applications by the parties to force the

disclosure of the identity of the confidential source known as 'Ma Chouette'" (the

"Intervention").20

24. Polygone filed a motion to contest the discontinuance by the G&M and, on

5 November 2008, the Q.S.C. judge refused to allow the G&M to discontinue on

the basis that the G&M and Leblanc "ont occupé du temps de cour, […] ont fait

18 Judgment of Dalphond J.A. dated 8 September 2008, A.R., pp. 32 et seq.

19 Letter from former counsel for the G&M to de Grandpré J. dated 15 September 2008, A.R., p. 74; Notice of discontinuance dated 15 September 2008, A.R., p. 75.

20 Intervention, A.R., pp. 76 et seq.


dépenser de l'argent aux parties" and that the G&M and Leblanc "ont fait leur lit.

Eh bien, qu'ils s'y couchent".21

25. On the same day, the G&M's appeal as of right from that judgment to the Q.C.A.22

was met by Polygone's motion to quash.23 On 15 December 2008, the Q.C.A.

quashed the G&M's appeal on the basis that the discontinuance was an

interlocutory judgment and that leave of that court was required.24

26. On 16 January 2009, the G&M sought leave to appeal to this Court from that

judgment of the Q.C.A. On 21 May 2009, leave to appeal from that judgment was

granted (Court file #32975) (the "Discontinuance Appeal").

VI. THE MOTION TO INTRODUCE FRESH EVIDENCE

27. Polygone made a motion in this Court on 12 June 2009 seeking either to declare

that the Book formed part of the Court's evidentiary record, or in the alternative, to

obtain permission to introduce the book as fresh evidence. By order of Charron J.

on 7 July 2009, this motion was dismissed but Polygone was authorized to include

the Book in its book of authorities.

PART II - QUESTIONS IN ISSUE

28. The immediate question raised by these Appeals is whether Leblanc is entitled to

refuse to respond to the Questions on the basis that they would reveal or tend to

reveal the identity of Ma Chouette. The fundamental issues raised thereby are:

(a) whether a journalist in Québec enjoys a right not to be required to disclose

the identity of a confidential source, in particular in the context of a civil

21 Judgment of de Grandpré J.S.C. dated 5 November 2008, A.R., pp. 66 et seq.

22 Inscription in appeal dated 5 November 2008, A.R., pp. 91 et seq.

23 Requête en rejet d'appel dated 17 November 2008, A.R., pp. 93 et seq.

24 Judgment of the Q.C.A. dated 15 December 2008, A.R., pp. 71 et seq.

- 10 - Appellant's Factum Questions in Issue _______________________________________________________________________

proceeding, and if so, how that right is to be balanced against the ability of

the party who is seeking disclosure to obtain information that it considers

relevant to the proceeding; and

(b) whether the Wigmore doctrine for "case by case" privilege applies in

Québec to determine whether a journalist can be compelled in civil litigation

to disclose the identity of a confidential source, and if so, whether the

application of the doctrine is modified in light of the constitutional

landscape.

29. The G&M does not know at this time whether Polygone intends to argue that

Leblanc has, by virtue of the publication of the Book, somehow waived his or the

G&M's right not to disclose the identity of Ma Chouette. Until Polygone's position

on this point in this Court is known, the G&M relies, inter alia, on the reasoning of

this Court in Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47

("Amselem") (A.B.A., vol. II, tab 29) to support the proposition that, to the extent

that a person may waive a constitutional right, it must be "voluntary, freely

expressed and with a clear understanding of the true consequences and effects of

so doing" (para. 96) and on the submission that, in these Appeals, there is no

foundation to suggest that Leblanc has revealed any information enabling

Ma Chouette to be identified or to establish that Leblanc has, in any way, waived

his or the G&M's right not to disclose Ma Chouette's identity.

30. Finally, the Discontinuance Appeal also raises a subsidiary issue as to whether the

G&M should have been denied its right to discontinue the Revocation Motion.

PART III - ARGUMENT

I. THE GOVERNING PRINCIPLES

A. FREEDOM OF THE PRESS

i. The Nature and Scope of Freedom of the Press

31. The concept of free and uninhibited speech permeates all truly democratic

societies and institutions, and its vital importance cannot be over-emphasized. As

- 11 - Appellant's Factum Argument _______________________________________________________________________

this Court has held, "a democracy cannot exist without that freedom to express

new ideas and to put forward opinions about the functioning of public

institutions".25

32. This Court has recognized time and time again that freedom of the press in

particular is a fundamental pillar of a free and democratic society, serving to

ensure, inter alia, that public institutions operate transparently and that citizens are

well-informed on matters affecting their lives and well-being. As expressed in

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3

S.C.R. 480 ("CBC"):

The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissentient views has long been thought to be a safeguard against state tyranny and corruption. James Mill put it this way:

So true it is, however, that the discontent of the people is the only means of removing the defects of vicious governments, that the freedom of the press, the main instrument of creating discontent, is, in all civilized countries, among all but the advocates of misgovernment, regarded as an indispensable security, and the greatest safeguard of the interests of mankind.

("Liberty of the Press", in Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations (1825 (reprint ed. 1967)), at p. 18.) (para. 18)26

33. The importance of freedom of the press is revealed by the elevation of that

freedom to constitutional status under section 2(b) of the Canadian Charter of

Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B of the

Canada Act 1982, R.S.C., 1985, App. II, No. 44 (the "Canadian Charter"), and to

quasi-constitutional status under section 3 of the Québec Charter of Human Rights

25 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, p. 1336

("Edmonton Journal").

26 See also Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, p. 475 and Edmonton Journal, p. 1336.


and Freedoms, R.S.Q., c. C-12 (the "Québec Charter"). Section 2(b) of the

Canadian Charter expressly includes "freedom of the press and other media of

communication", and for purposes of the Québec Charter section 3 subsumes

freedom of the press within freedom of expression:27

3. 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. [emphasis added]

34. Freedom of the press is also recognized as protecting not only the right to

transmit, but as well the right to gather information:

There can be no doubt, of course, that it comprises the right to disseminate news, information and beliefs. This was the manner in which the right was originally expressed, in the first draft of s. 2(b) of the Canadian Charter of Rights and Freedoms before its expansion to its present form. However, the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference. (pp. 429-430)28 [emphasis added]

ii. The Right Not to Disclose the Identity of a Confidential Source

35. It would appear to be self-evident that freedom of the press, concomitant with the

right to gather information, would be severely hampered if a journalist could be

compelled to disclose the identity of a confidential source. As a matter of logic, if

not common sense, if a source believes that, notwithstanding assurances from the

journalist, there is a reasonable risk that its identity will be publicly disclosed, the

source will be deterred from coming forward, with the result that the particular

story would simply go untold. The House of Lords recognized this link in 1981 in

27 See Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du

Québec, [2004] 3 S.C.R. 95 (A.B.A., vol. II, tab 16), para. 48 and Champagne v. Collège d'enseignement général et professionnel de Jonquière, [1997] R.J.Q. 2395 (C.A.) ("Champagne") (A.B.A., vol. I, tab 7), p. 2400.

28 Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421 ("Lessard") (A.B.A., vol. I, tab 5). See also Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122.


British Steel Corporation v. Granada Television Ltd. (1981), 1 All E.R. 417 (H.L.)

("British Steel") (A.B.A., vol. I, tab 3):

After studying the cases it seems to me that the courts are reaching towards this principle. The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information. Neither by means of discovery before trial. Nor by questions or cross-examination at the trial. Nor by subpoena. The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power — in companies or in government departments — would never be known. Investigative journalism has proved itself as a valuable adjunct of the freedom of the press. (p. 441) [emphasis added]

36. This Court dealt generally with section 2(b) of the Canadian Charter and the

"drying up" of news sources in Moysa v. Alberta (Labour relations board), [1989] 1

S.C.R. 1572 ("Moysa") (A.B.A., vol. II, tab 25). At issue there was, inter alia,

whether requiring a journalist witness to testify before a labour relations board

would in and of itself breach section 2(b) of the Canadian Charter, quite apart from

any common law protection which the journalist would otherwise enjoy. This Court

held, in connection with testimonial compulsion generally (as opposed to the

particular question of compelling disclosure of a confidential source), that it was

"not convinced that it is indisputable that there is a direct relationship between

testimonial compulsion and a 'drying-up' of news sources". (Moysa (A.B.A., vol. II,

tab 25), p. 1581).

37. This Court's position, however, in connection specifically with the impact of forced

disclosure of a confidential source, is different. In Lessard (A.B.A., vol. I, tab 5), at

issue was the right of the police to obtain a warrant to search the premises of the

Canadian Broadcasting Corporation in order to obtain videotape evidence of the

commission of a crime. La Forest J., in a concurring opinion, held:


I have little doubt, too, that the gathering of information could in many circumstances be seriously inhibited if government had too ready access to information in the hands of the media. That someone might be deterred from providing information to a journalist because his or her identity could be revealed seems to me to be self-evident. As Stewart J. (dissenting) stated in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), at p. 572:

It requires no blind leap of faith to understand that a person who gives information to a journalist only on condition that his identity will not be revealed will be less likely to give that information if he knows that, despite the journalist's assurance, his identity may in fact be disclosed.

[…]

In my view, the threat to the freedom of the press that would result from unrestrained searches of certain journalistic material goes beyond the merely speculative. […] (pp. 430-431)29 [emphasis added]

38. McLachlin J., as she then was, though in dissent, further observed that a police

search and seizure may impinge on the values underlying freedom of the press in

that, inter alia, "confidential sources of information may be fearful of speaking to

the press, and the press may lose opportunities to cover various events because

of fears on the part of participants that press files will be readily available to the

authorities".30

39. The link between an inability to maintain the confidentiality of a source's identity

and the "drying up" of news sources has as well been recognized by courts

29 On the particular facts, La Forest J. held that there was no "chilling effect" on news

gathering in connection with films and photographs taken of an event, since "[a]bsent a promise of confidentiality, no one can reasonably believe that there is no danger of identification when he is being captured on film by the press". See also CBC.

30 See Lessard (A.B.A., vol. I, tab 5), p. 452. See also St. Elizabeth Home Society (Hamilton, Ontario) v. The Corporation of the City of Hamilton et al. (2008), 89 O.R. (3d) 81 (C.A.) (A.B.A., vol. II, tab 28), paras. 27-29.


internationally.31 For example, the House of Lords, in Ashworth Security Hospital v

MGN Limited, [2002] UKHL 29 (A.B.A., vol. I, tab 2) held:

Any disclosure of a journalist's sources does have a chilling effect on the freedom of the press. The court when considering making an order for disclosure in exercise of the Norwich Pharmacal jurisdiction must have this well in mind. The position is analogous to the long recognised position of informers under the criminal law. In D v NSPCC [1978] AC 171 their Lordships applied the approach of the courts to police informants to those who provided information to the NSPCC. Having referred, at p 218, to Marks v Beyfus (1890) 25 QBD 494 Lord Diplock explained the rationale of the rule as being plain, if the identity of informers were too readily liable to be disclosed in a court of law the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. Ordering journalists to disclose their sources can have similar consequences. The fact is that information which should be placed in the public domain is frequently made available to the press by individuals who would lack the courage to provide the information if they thought there was a risk of their identity being disclosed. The fact that journalists' sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public. It is for this reason that

31 In Branzburg v. Hayes (1972), 408 U.S. 665, Stewart J., though in dissent, held:

The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. […] the absence of a constitutional right protecting, in any way, a confidential relationship from compulsory process -- will either deter sources from divulging information or deter reporters from gathering and publishing information.

It is obvious that informants are necessary to the news-gathering process as we know it today. […]

It is equally obvious that the promise of confidentiality may be a necessary prerequisite to a productive relationship between a newsman and his informants. An officeholder may fear his superior; a member of the bureaucracy, his associates; a dissident, the scorn of majority opinion. All may have information valuable to the public discourse, yet each may be willing to relate that information only in confidence to a reporter whom he trusts, either because of excessive caution or because of a reasonable fear of reprisals or censure for unorthodox views. […] (pp. 728-730)


it is well established now that the courts will normally protect journalists' sources from identification. (para. 61)32 [emphasis added]

40. Similarly, in Goodwin v. United Kingdom, (1996), 22 E.H.H.R. 123 (A.B.A., vol. II,

tab 17), the European Court of Human Rights held:

The Commission finds that the disclosure order has a potential chilling effect on the readiness of the people to give information to journalists such as the applicant. It also considers that the order in itself which exerts coercion on the applicant to reveal information which he received on a non-attributable basis constitutes a restriction on his right to freedom of expression. There are circumstances in which a "negative right" is to be implied in Article 10 not to be compelled to give information or to state an opinion. Compulsion to provide information as to a journalist's sources must in particular constitute a restriction in the capacity of a journalist to freely receive and impart information without interference by a public authority.

[…]

The Commission considers that protection of the sources from which journalists derive information is an essential means of enabling the press to perform its important function of "public watchdog" in a democratic society. If journalists could be compelled to reveal their sources, this would make it much more difficult for them to obtain information and, as a consequence, to inform the public about matters of public interest. The right to freedom of expression, as protected by Article 10 of the Convention, which includes the right to receive and impart information, therefore requires that any such compulsion must be limited to exceptional circumstances where vital public or individual interests are at stake. The question is therefore whether such exceptional circumstances existed in the present case. (pp. 133-134, 137)33 [emphasis added]

41. It follows that freedom of the press must include the right on the part of a journalist

to gather information from a source on the condition of a promise not to divulge its

identity and, as a necessary corollary, the right not to be required to disclose the

identity of that source. The rationale for this right is the "chilling effect" upon news

gathering that would be generated by any particular instance of compelled

32 See also Mersey Care NHS Trust v. Robin Ackroyd, [2007] EWCA Civ 101

("Mersey Care") (A.B.A., vol. II, tab 24).

33 See also Ernst v. Belgium (2004), 39 E.H.R.R. 35 (A.B.A., vol. I, tab 14).


disclosure, since sources will not come forward if the journalist's promise of

confidentially is not enforced.

iii. The Application of the Right

42. The determination that the right on the part of a journalist not to disclose the

identity of a confidential source exists under section 2(b) Canadian Charter and

section 3 Québec Charter does not end the matter. Its specific application – in

terms of who actually enjoys the benefit of the right, and who is subject to the

burden of the right – must be delineated.

43. The position that a freedom or right under the Canadian Charter or Québec

Charter must be interpreted in a generous and liberal fashion having regard to the

history of the guarantee and focusing on the purpose of the guarantee requires no

authority.34 In this case, the scope of the right must be consistent with the

accepted rationale therefor, specifically, to ensure that news gathering is not

hampered because sources are deterred from coming forward out of concern that,

notwithstanding any undertaking of confidentiality, their identity may be disclosed.

44. It logically follows that the right would arise where (i) a person engaged in news

gathering (ii) has provided an undertaking to a source to keep its identity

confidential without which it is reasonable to assume that the source would not

have come forward. The first of these criteria is likely to give rise to the most

contention in any particular case; given the advent of the Internet and the

emergence of new forms of media, it is perhaps no longer appropriate to conceive

only of television, radio and newspaper journalists as those engaged in news

gathering.35 While it is not necessary for purposes of the Appeals to fully delineate

34 If any authority were necessary, reference can be had to Québec (Commission

des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228 ("Maksteel") and to the cases referred to therein.

35 See, e.g. Lebel J.'s reasons in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252:


this notion of "news gathering", there seems little doubt that a person would have

to be engaged in bona fide "news gathering" in order to invoke the right not to

disclose the identity of a confidential source, else no logical link would exist

between the rationale for the protection of the right and its scope.

45. As to who is subject to the burden of the right, there is no doubt that the Québec

Charter protects the freedoms and rights set out therein from any violation,

governing relationships not only between the state and the individual but as well

between individuals.36 Thus, the protective scope of the right not to disclose the

identity of a confidential source finds no limitation and an order by a judge

compelling a journalist to disclose the identity of a confidential source, such as by

way of dismissal to an objection, would violate section 3 of the Québec Charter.37

46. In other words, in a judicial context, the right not to disclose the identity of a

confidential source is translated into an evidentiary privilege.38 In this regard, the

right operates in an analogous manner to section 9(2) of the Québec Charter in

relation to professional secrecy – except that whereas section 9(2) recognizes a

right on the part of the imparter of the confidential information to have it kept

Furthermore, judges will often be unable to avoid choosing who will be authorized to take part in proceedings on applications such as this. It is reasonable to assume that there will be cases of particular interest to the public in which many people will want to participate, if only to have access to the evidence they would need in order to take part, which would not otherwise be available to them. The people wanting to participate might therefore include not only media representatives, but also ordinary citizens. (At any rate, it must be acknowledged that it is becoming increasingly difficult to distinguish the two in this age of electronic media and the "blogosphere".) (para. 153) [emphasis added]

36 Sections 54 and 55 Québec Charter. See, e.g., Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Chaoulli v. Québec (Attorney General), [2005] 1 S.C.R. 791, para. 33.

37 See, e.g., Champagne (A.B.A., vol. I, tab 7).

38 See, e.g., Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647 ("Frenette") (A.B.A., vol. I, tab 15).


confidential, and imposes a corollary obligation on the part of the recipient to keep

it confidential – section 3 recognizes the right on the part of the journalist, the

recipient of the information, to keep it confidential.39

47. The Canadian Charter may as well apply to a court order, including where the

government is a party to the action in question.40 However, for purposes of these

Appeals, whether the Canadian Charter applies to the order of the Q.S.C. judge

dismissing the Objections is of no matter since the requisite protection is, in any

event, afforded by the Québec Charter.41

39 Section 9 of the Québec Charter provides:

9. 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.

Section 9 has been found not to extend protection to information imparted by a source to a journalist because a journalist is not bound to professional secrecy by law (see, e.g., Tremblay v. Hamilton, [1995] R.J.Q. 2440 (S.C.) ("Tremblay") (A.B.A., vol. II, tab 30).

40 Section 32(1) Canadian Charter. This Court has held in certain contexts that a court order is subject to Canadian Charter scrutiny (R. v. Rahey, [1987] 1 S.C.R. 588; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214), but that it was not so subject in other cases (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, para. 36). See also Dagenais (A.B.A., vol. I, tab 9) and R. v. Mentuck, [2001] 3 S.C.R. 442 ("Mentuck").

41 See Maksteel.


B. THE RIGHT NOT TO DISCLOSE IN JUDICIAL PROCEEDINGS AND THE REQUISITE BALANCING

48. The right not to be required to disclose the identity of a confidential source under

section 3 of the Québec Charter, as any constitutional or quasi-constitutional right,

is not absolute. Thus, section 9.1 of the Québec Charter provides:

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

49. In Ford v. Québec (Attorney General), [1988] 2 S.C.R. 712, this Court held that the

first paragraph of section 9.1 serves as an interpretive tool in connection with

private law relationships:

The first paragraph of s. 9.1 speaks of the manner in which a person must exercise his fundamental freedoms and rights. That is not a limit on the authority of government but rather does suggest the manner in which the scope of the fundamental freedoms and rights is to be interpreted. […] (p. 770)

50. In Amselem (A.B.A., vol. II, tab 29), where two rights protected by the Québec

Charter were alleged to conflict with one another in a private law context, this

Court addressed how section 9.1 operates. The majority held that "[t]he ultimate

protection of any particular Charter right must be measured in relation to other

rights and with a view to the underlying context in which the apparent conflict

arises". (para. 62). The dissent (though not necessarily on this point) held that "[t]o

reconcile all the rights and values at issue in light of the wording of the first

paragraph of section 9.1 of the Québec Charter involves finding a balance and a

compromise consistent with the public interest in the specific context of the case"

(para. 154).

51. More recently, in Bruker v. Marcovitz, [2007] 3 S.C.R. 607 ("Bruker") (A.B.A.,

vol. I, tab 4), the majority of this Court picked up from where the dissent in

Amselem (A.B.A., vol. II, tab 29) left off, clarifying that section 9.1 requires that an


assertion of a right be reconciled not only with countervailing rights, but as well

with countervailing values and harm, and that the court must undertake a

nuanced, fact-specific inquiry:

In Quebec, the fact that rights and freedoms, including freedom of religion, are limited by the extent to which their exercise is harmful to others, finds expression in s. 9.1 of the Quebec Charter. Only the first paragraph of s. 9.1 is engaged. It states:

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

Section 9.1 confirms the principle that the assertion of a claim to religious freedom must be reconciled with countervailing rights, values, and harm. A balancing of competing rights and values appears to have been what was intended when s. 9.1 was introduced in 1982, as reflected in the following words of the then Quebec Minister of Justice, Me Marc-André Bédard:

[translation] The purpose of s. 9.1 is to temper the absoluteness of the freedoms and rights set out in ss. 1 through 9 both by imposing limits, which are set out in the first paragraph, on the holders of those rights and freedoms in relation to other citizens . . . .

(Journal des débats: Commissions parlementaires, 3rd Sess., 32nd Leg., December 16, 1982, at p. B-11609)

(See Amselem, at paras. 154-57, per Bastarache J., and para. 191, per Binnie J.; Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591.)

Mr. Marcovitz's claim must therefore be weighed against the "democratic values, public order and the general well-being of the citizens of Québec" stipulated by s. 9.1. We thereby enter the complex, nuanced, fact-specific territory referred to at the outset of these reasons. (paras. 76-78) [emphasis added]

52. The question thus becomes, in a case where the identity of a confidential source is

sought in the context of civil litigation because it is alleged to constitute relevant

information for a party to that litigation, how specifically the right not to disclose the

identity of a confidential source should be weighed against the "democratic values,

public order and the general well-being of the citizens of Québec". Notwithstanding


that the nature of this inquiry is fact-specific, certain general principles to guide the

balancing can be delineated.

53. Firstly, there is no Québec Charter right in these particular circumstances with

which the right not to disclose the identity of a confidential source competes.

Section 23 of the Québec Charter provides:

23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.

The tribunal may decide to sit in camera, however, in the interests of morality or public order.

54. While this Court in 2747-3714 Québec Inc. v. Québec, [1996] 3 S.C.R. 919

("2747-3714") (A.B.A., vol. I, tab 1) made clear that section 23 applies to both

penal and civil matters (para. 26), notwithstanding some lower court judgments to

the effect that a party may "faire valoir tous ses moyens",42 section 23 does not

per se include a right on the part of a party to a judicial proceeding to obtain

whatever information that party deems relevant to that proceeding by whatever

means. Rather, section 23, as made clear in particular by its French form, provides

the right to a (i) public hearing by an (ii) impartial and (iii) independent tribunal.43

42 Thus, in Centre de réadaptation en déficience intellectuelle de Québec v. Groupe

TVA inc., [2005] R.J.Q. 2327 (S.C.) ("Groupe TVA") (A.B.A., vol. I, tab 6), the court stated, with providing authority therefor, that section 23 includes "le droit de tout citoyen de faire valoir tous ses moyens lors d'une audition devant un tribunal indépendant" (p. 2342). Moreover, in Communauté urbaine de Montréal (Service de police) v. Commission des droits de la personne et des droits de la jeunesse (2001), AZ-50085552 (C.A.) (A.B.A., vol. I, tab 8), the court, in order to exercise jurisdiction over an interlocutory matter, indicated that section 23 provided a party with the right to "faire valoir entièrement les moyens qui sont au cœur même de la défense qu'elle entend à l'évidence opposer à l'action" (para. 19).

43 For the right to a public hearing, see Société Radio-Canada c. Québec (Procureur général), 2008 QCCA 1910; X c. Société canadienne de la Croix-Rouge, [1992] R.J.Q. 2735, J.E. 92-1748 (C.A.). For the right to a hearing by an impartial and independent tribunal, see 2747-3714 (A.B.A., vol. I, tab 1).


55. That section 23 does not provide a right to make whatever evidence is considered

relevant is further supported by this Court's decision in Frenette (A.B.A., vol. I,

tab 15) where at issue was the compellability of medical records. The debate

before this Court was framed as a conflict between, on the one hand, the rights to

privacy and to secrecy of confidential information under sections 5 and 9 of the

Québec Charter and, on the other hand, not section 23 of the Québec Charter, but

rather "other fundamental principles of justice such as compellability, disclosure of

material facts, the right to make a full defence and the search for truth" (p. 675).

The limited scope of section 23 is further revealed by consideration of section 35

of the Québec Charter, which provides an accused person, in a penal context, with

the "right to a full and complete defence" and the "right to examine and cross-

examine witnesses", which provision would be redundant if section 23 were

understood as conferring the same rights.44

56. Secondly, while article 2857 C.C.Q. sets out the general rule to the effect that "all

evidence of any fact relevant to a dispute is admissible and may be presented by

any means", that general principle is subjugated to the exercise of fundamental

rights enshrined by, inter alia, the Québec Charter, as made clear by section 2858

C.C.Q.:

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.

57. Article 2858 C.C.Q. may not be relevant to the particular issue at hand, since it

appears to presuppose that the breach has already occurred and the evidence has

already been obtained (and that the judge must make a determination as to

whether to reject the evidence), while here the issue is whether the Q.S.C. judge

can compel Leblanc to answer the Questions. However, the mere existence of this

44 See, e.g., R. v. Commanda, 2007 QCCA 947.


provision reveals the primacy of the rights enshrined in the Québec Charter over

the rules of evidence contained in the C.C.Q.

58. Thus, any weighing of the right not to disclose the identity of a confidential source

against the ability of a party to obtain all information it considers relevant must be

guided by the fact that there is no Québec Charter right per se entitling a party to

civil litigation to obtain all such information by whatever means, and that the

admissibility of all relevant evidence is as a general matter subject to the rights

and freedoms enshrined in the Québec Charter. In this sense, the weighing must

be predisposed in favour of freedom of the press, and therefore non-disclosure of

the confidential source, and a particularly persuasive case in favour of disclosure

must be made.

59. In light of the above, it would seem that, at a bare minimum, to require a journalist

to disclose the identity of a confidential source, the party seeking the disclosure

would have to establish,45 as a preliminary matter (i) that the identity of the

confidential source is necessary to establish a particular fact (i.e., that there is no

other reasonable way to prove the particular fact); and (ii) that the establishment of

the particular fact is necessary in connection with the disposition of an issue in

dispute (i.e., that the party cannot make its case on the particular issue without

establishment of that fact).

45 On the question of burden, Amselem (A.B.A., vol. II, tab 29) holds:

In the first step of the analysis, the person alleging the infringement of a right bears the burden of proving that it has occurred. […] At this stage, the issue is an infringement of the purpose of the right, not a violation of the right itself. Consequently, even if a claimant shows in the first step that the purpose of the protected right has been infringed, this amounts to a violation of the right itself only if the infringement is inconsistent with the principles underlying s. 9.1. In the second step, in my view, the onus is on the defendant to show that the infringement is consistent with s. 9.1. It is logical to place the burden of proving an infringement on the claimant and that of proving consistency with s. 9.1 on his or her adversary, since these parties are in the best position to give the required proof. (para. 156)


60. This necessity criterion ensures that the party seeking disclosure is not simply

doing so as a matter of convenience but rather as a matter of last resort. To the

extent that the fact in question can be established without the identity of the

source, or that the party can make its case on the particular issue by presenting

alternative facts, even with additional difficulty, there is no possible justification for

a violation of freedom of the press. Indeed, where this Court weighed the right to

privacy against the ability to present a full case in Frenette (A.B.A., vol. I, tab 15), it

held that "a judge will be greatly inclined to allow access to medical records where

the state of health of the holder of the privilege is the central issue of the case and

where there are no other means for a party to prove his case". (pp. 685-686)

[emphasis added]

61. Further, where the requisite balancing is between freedom of the press and the

ability to present a full case, the lower courts have explicitly endorsed the

necessity criterion, such as in Grenier v. Arthur, [2001] R.J.Q. 674 (S.C.)

("Grenier") (A.B.A., vol. II, tab 18) where the court indicated that the judge would

have to evaluate the "caractère indispensable de l'information recherchée"

(para. 44),46 or in Groupe TVA (A.B.A., vol. I, tab 6) where the court held that "le

C.R.D.I.Q. a pu mettre de l'avant tous les arguments nécessaires au soutien de sa

demande sans connaître l'identité de la source" (para. 114), or in Drouin v. Presse

ltée (La), [1999] R.J.Q. 3023 (S.C.) ("Drouin") (A.B.A., vol. I, tab 13) where the

court stated that "si l'information recherchée peut être intéressante, elle n'est

nullement nécessaire pour préserver l'équité du procès" (p. 3030).

62. If the party seeking disclosure is able to satisfy this condition, only then will the

court undertake "the complex, nuanced, fact-specific" weighing, as per Bruker

(A.B.A., vol. I, tab 4), of the right not to disclose against the ability of a party to

obtain all information it considers relevant to the proceeding. Given the fact-

specific nature of the analysis, it is difficult if not impossible to compile an

exhaustive list of the factors that could be considered. Relevant factors could

46 See also Tremblay (A.B.A., vol. II, tab 30).


include, inter alia, whether the underlying cause of action is patrimonial or extra-

patrimonial; whether the action seeks only damages or some other relief; whether

the journalist is a party to the action, and if so, whether as plaintiff or defendant;

whether the issue in respect of which disclosure is sought is central to the

particular action; whether the story to which the confidential source contributed

was ultimately disseminated, and if so, the extent of its importance to the

Canadian public; the extent of the contribution of the confidential source to the

story; the reasons for which the source came forward, the nature of the potential

repercussions that could be suffered by the source if its identity is disclosed; etc.

63. Generally speaking, consideration of necessity and proportionality in matters

requiring a balancing of freedom of the press against some other right or value is

not without precedent. Thus, in Dagenais v. Canadian Broadcasting Corp., [1994]

3 S.C.R. 83547 ("Dagenais") (A.B.A., vol. I, tab 9) (p. 878) where the Court was

required to reconcile an accused's interest in a fair trial with society's interest in

freedom of expression in assessing whether to issue a publication ban, the Court

set out a test to the effect that a publication ban should only be ordered where (a)

such a ban is necessary in order to prevent a real and substantial risk to the

fairness of the trial, because reasonably available alternative measures will not

prevent the risk; and (b) the salutary effects of the publication ban outweigh the

deleterious effects to the free expression of those affected by the ban.

64. Similarly, in Lessard (A.B.A., vol. I, tab 5), where at issue was the balancing

between the public interest in the right of the press to conduct its activities free

from state interference, and the public interest in seeing that those guilty of

offences are charged and convicted, McLachlin J., as she was then, though in

dissent, proposed that the issuance of a warrant for search and for seizure of

press information may be justified provided (a) the search/seizure is necessary

because there are no alternative sources for the information required; (b) the

importance of the search/seizure outweighs the damage to be caused by the

47 See also Mentuck.


infringement of freedom of the press; and (c) the warrant ensures that the

search/seizure interferes with the press's freedom as little as possible.48

65. It is worth noting in closing on this point that freedom of expression as set out in

Article 10 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms, 213 U.N.T.S. 221 as amended by Protocol No. 11,

Rome, 4.XI.1950 (the "Convention")49 has been interpreted so as to limit those

circumstances in which a journalist can be compelled to reveal a confidential

source to those where vital public or individual interests are at stake, and the

relevant test requires that disclosure be both necessary and proportionate to the

legitimate aim being pursued:

The question in each case to which s 10 of the 1981 Act or art 10 of the convention applies is whether the claimant has shown that it is both necessary, in the sense of there being an overriding interest amounting to a pressing social need, and proportionate for the court to order the journalist to disclose the name of the source. […]50

48 See Lessard (A.B.A., vol. I, tab 5), p. 455. See also Descôteaux et al. v.

Mierzwinski, [1982] 1 S.C.R. 860.

49 Article 10 provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

50 Mersey Care (A.B.A., vol. II, tab 24), para. 17. See also Ashworth (A.B.A., vol. I, tab 2) and John v. Express Newspapers, [2000] All E.R. 257 (C.A.) (A.B.A., vol. II, tab 19). Note that Article 10 of the Convention has been incorporated into the Human Rights Act 1998 (U.K.), 1998 c. 42 s. 1(1). Other jurisdictions have


C. WIGMORE AND THE LAW OF EVIDENCE IN QUÉBEC

i. The Wigmore Doctrine

66. This Court has recognized that, at common law, journalist-informant

communications are not protected by a "class" privilege, but rather on a "case-by-

case" basis in accordance with the Wigmore doctrine.51 The Wigmore doctrine

provides that, in order for protection to apply, four (4) conditions must be

established by the party invoking the privilege: (1) the communications must

originate in a confidence that they will not be disclosed; (2) this element of

confidentiality must be essential to the full and satisfactory maintenance of the

relation between the parties; (3) the relation must be one which in the opinion of

the community ought to be sedulously fostered; (4) the injury that would inure to

the relation by the disclosure of the communications must be greater than the

benefit thereby gained for the correct disposal of litigation.52

extended protection to confidential sources legislatively, such as in the United States, where many states and the District of Columbia have enacted press "shield laws" and the United States House of Representatives has passed U.S., Bill H.R. 985, Free Flow of Information Act of 2009, 111th Cong., 2009.

51 R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14. See also Slavutych v. Baker et al., [1976] 1 S.C.R. 254; Moysa (A.B.A., vol. II, tab 25); R. v. Gruenke, [1991] 3 S.C.R. 263; M. (A.) v. Ryan, [1997] 1 S.C.R. 157 ("Ryan") (A.B.A., vol. II, tab 22).

52 In Ryan (A.B.A., vol. II, tab 22), the Court explained the rationale for common law privileges:

The common law principles underlying the recognition of privilege from disclosure are simply stated. They proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth": Trammel v. United States, 445 U.S. 40 (1980), at p. 50. (para. 19)


ii. The Law of Evidence in Québec

67. As a general principle, the civil law is a complete system unto itself and must be

interpreted and developed in accordance with its own rules. That principle was

established by this Court long ago in Desrosiers v. The King (1920), 60 S.C.R. 105

("Desrosiers") (A.B.A., vol. I, tab 10) by Mignault J.:

Il me semble respectueusement qu'il est temps de réagir contre l'habitude de recourir, dans les causes de la province de Québec, aux précédents du droit commun anglais, pour le motif que le code civil contiendrait une règle qui serait d'accord avec un principe du droit anglais. Sur bien des points, et surtout en matière de mandat, le code civil et le common law contiennent des règles semblables. Cependant le droit civil constitue un système complet par lui-même et doit s'interpréter d'après ses propres règles. (p. 126)53 [emphasis added]

68. More recently, in Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc. [2001]

2 S.C.R. 743 (A.B.A., vol. II, tab 20), this Court had the opportunity to apply the

Desrosiers principle to the law of procedure in Québec:

[…] La loi prime. Les tribunaux doivent baser leurs décisions sur celle-ci. Sans nier l'importance de la jurisprudence, ce système ne lui reconnaît pas le statut de source formelle du droit, malgré la légitimité d'une interprétation créatrice et ouverte sur la recherche de l'intention du législateur telle que l'expriment ou l'impliquent les textes de loi. […]

Bien que mixte, la procédure civile du Québec demeure un droit écrit et codifié, régi par une tradition d'interprétation civiliste. [...] Suivant la tradition civiliste, les tribunaux québécois doivent donc trouver leur marge d'interprétation et de développement du droit à l'intérieur du cadre juridique que constituent le Code et les principes généraux de procédure qui le sous-tendent. (paras. 37 to 39) [emphasis added]

69. The law of evidence in Québec has its roots, inter alia, in English law.54 Moreover,

until 1994, article 1206 of the Civil Code of Lower Canada, 1865, c. 41, as

53 See also Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452 (A.B.A., vol. II, tab 27).

54 See, e.g., Jean-Claude Royer, La Preuve Civile, 4ème édition (Cowansville, QC: Éditions Yvon Blais Inc., 2008) ("Royer") (A.B.A., vol. II, tab 32), pp. 38, 942-943.


amended (the "C.C.L.C.") had made explicit reference to the applicability in certain

circumstances of the common law of evidence.55 As such, Québec courts had

recourse to the common law not only to interpret a rule of evidence having its

origin in English law, but as well to supplement Québec law where it had no

equivalent rule. Thus, for example, in Royal Victoria Hospital et al. v. Morrow,

[1974] S.C.R. 501 (A.B.A., vol. II, tab 26), this Court held that the exceptions

allowed in English law to the hearsay rule "must be recognized as applicable, in so

far as there is no express provision in this regard or any incompatibility with an

express rule" (p. 509). Moreover, the Q.C.A. in Le Sous-Ministre du Revenu du

Québec v. Fava, [1984] C.A. 639 found no difficulty in recognizing that the

common law litigation privilege applies in Québec, though this Court has more

recently held that litigation privilege "is now being absorbed into the Québec civil

law concept of professional secrecy".56

70. However, with the repeal of the C.C.L.C., article 1206 C.C.L.C. no longer forms

part of Québec law, and there exists no equivalent thereto in the Civil Code of

Québec, S.Q., 1991, c. 64, (the "C.C.Q."). As such, the question arises as to

whether the common law of evidence continues to play a suppletive role in

Québec. In this regard, there exists a doctrinal57 and jurisprudential divide. Thus,

for example, the Q.S.C. held in Zurich Indemnity Co. of Canada v. Libman, [1997]

R.J.Q. 657 (S.C.) (A.B.A., vol. II, tab 31) that notwithstanding the repeal of articles

55 Article 1206 C.C.L.C. provided:

The rules declared in this chapter, unless expressly or by their nature limited, apply in commercial as well as in other matters.

56 Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets, [2004] 1 S.C.R. 456, para. 44. Similarly, this Court, in Bisaillon v. Keable, [1983] 2 S.C.R. 60 held that the secrecy rule regarding a police informer's identity forms part of the law of Québec.

57 In this regard, contrast Léo Ducharme, Précis de la preuve, 6th ed. (Montréal, QC: Wilson & Lafleur, 2005) (A.B.A., vol. II, tab 33) with Royer (A.B.A., vol. II, tab 32).


1206 and 2712 C.C.L.C.,58 "certains privilèges de common law, telle la

communication des documents préparés en vue d'un litige, n'ont pas été abolis le

1er janvier 1994, même s'ils ne sont pas expressément prévus dans le Code civil

du Québec".59 On the other hand, in Drouin (A.B.A., vol. I, tab 13), in reference

specifically to the Wigmore doctrine, Rochon J. (as he then was) held:

Depuis 1994, le législateur québécois a repris, dans un chapitre précis, les règles de preuve applicables à toutes les instances. Sous réserve de certaines dispositions transitoires qui ne nous concernent pas, le livre septième de la preuve contenue au Code civil s'applique au présent litige. L'ancien article 2712 et le second alinéa de l'article 1206 du Code civil du Bas-Canada introduisaient dans notre droit des principes supplétifs de droit français et de droit anglais. Ces articles sont disparus et n'ont pas été repris dans le nouveau Code. L'on peut conclure que nos règles de preuve sont autonomes et n'ont pas besoin de références aux règles de common law pour les compléter. (p. 3026) (see also Grenier (A.B.A., vol. II, tab 18)).

58 Article 2712 C.C.L.C. provided:

The laws in force at the time of the coming into force of this code are abrogated in all cases:

In which there is a provision herein having expressly or impliedly that effect;

In which such laws are contrary to or inconsistent with any provision herein contained;

In which express provision is herein made upon the particular matter to which such laws relate;

Except always that as regards transactions, matters and things anterior to the coming into force of this code, and to which its provisions could not apply without having a retroactive effect, the provisions of law which without this code would apply to such transactions, matters and things remain in force and apply to them, and this code applies to them only so far as it coincides with such provisions.

59 Zurich Indemnity (A.B.A., vol. II, tab 31), p. 661. However, as discussed above, this Court has held that litigation privilege has been subsumed into Québec's rule of professional secrecy.


71. Indeed, the continuing relevance in Québec of the Wigmore doctrine for the

determination as to whether a journalist can be compelled to disclose the identity

of a confidential source has itself been the subject of debate. While some Québec

judgments have endorsed the Wigmore approach, albeit in some cases with

reservation or qualification,60 others have explicitly rejected it.61 It is noteworthy

perhaps that those cases which recognize the common law as having suppletive

value in Québec's law of evidence appear to be based on a line of cases which is

no longer relevant in light of the repeal of the C.C.L.C. and the adoption of the

C.C.Q.62

72. Given the right which is afforded by section 3 of the Québec Charter on the part of

a journalist to protect the identity of the confidential source, and that this right

extends to an evidentiary privilege in the context of civil proceedings, the courts in

Québec need not rely on the Wigmore doctrine on this particular question.63

60 See e.g., Tremblay (A.B.A., vol. II, tab 30), where the Court applied the Wigmore

analysis, while at the same time remarking that "le rôle particulier de la presse, l'importance de la liberté de presse garantie à l'article 2b) de la Charte canadienne des droits et libertés de même que l'exigence formulée à l'article 2858 du Code civil du Québec doivent être soupesés en regard du droit de l'autre partie d'obtenir la divulgation qu'elle recherche aux fins de son recours". (p. 2444) [emphasis added]. See also Groupe TVA (A.B.A., vol. I, tab 6) and Développements Hydroméga inc. v. Société Radio-Canada, B.E. 98BE-383 (S.C.) (A.B.A., vol. I, tab 11).

61 See Grenier (A.B.A., vol. II, tab 18) and Drouin (A.B.A., vol. I, tab 13).

62 Thus, in Landry v. Diffusion Métromédia C.M.R. inc. (1999), AZ-99021634 (S.C.) (A.B.A., vol. II, tab 21), the court held at p. 21, citing Royal Victoria (A.B.A., vol. II, tab 26), that "[l]es règles d'exclusion de preuve qui sont reliées à l'administration de la justice et celles qui concernent l'enquête et la mise en œuvre de la preuve testimoniale tirent leurs origines de la common law" and that "[i]l faut généralement recourir au droit supplétif anglais pour les interpréter".

63 In this regard, there may be an argument to the effect that the Wigmore doctrine does form part of the law of Québec in connection with other types of confidential communications. See, e.g., Néron v. Société Radio-Canada, AZ-50195361 (S.C.)


iii. The Modified Wigmore Doctrine

73. In the alternative, if there is no stand-alone right under section 3 of the Québec

Charter not to reveal the identity of a confidential source, thus giving rise to an

obvious and significant void in Québec law, the Wigmore doctrine would have to

be incorporated, albeit in modified form. Indeed, in Ryan (A.B.A., vol. II, tab 22),

where the issue was whether the defendant in a sexual assault suit could access

the plaintiff's psychiatrist's counselling records and notes, notwithstanding that the

Court determined that the Canadian Charter did not directly apply, the Court held

that the fourth Wigmore requirement should be infused with the Canadian Charter

values at issue:

[…] In view of the purely private nature of the litigation at bar, the Charter does not "apply" per se. Nevertheless, ensuring that the common law of privilege develops in accordance with "Charter values" requires that the existing rules be scrutinized to ensure that they reflect the values the Charter enshrines. This does not mean that the rules of privilege can be abrogated entirely and replaced with a new form of discretion governing disclosure. Rather, it means that the basic structure of the common law privilege analysis must remain intact, even if particular rules which are applied within that structure must be modified and updated to reflect emerging social realities.

[…]

As noted, the common law must develop in a way that reflects emerging Charter values. It follows that the factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values. (paras. 23, 30)64 [emphasis added]

74. As previously explained, however, the Québec Charter is directly applicable in

private litigation. As such, not only should the values reflected in section 3 of the

Québec Charter (and section 2(b) of the Canadian Charter) – including the

fundamental role played by journalists in democracies – be reflected in the fourth

(relating to an offer of settlement); Ouellette v. La Capitale, Compagnie d'assurance générale, AZ-98021475 (S.C.) (relating to an insurance declaration).

64 See also Gruenke and Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.


Wigmore requirement, but further, the burden should be shifted such that the party

seeking disclosure should be required to establish that the benefit gained by the

disclosure of the source's identity must be greater than the injury that would inure.

This shifting of the burden accords with the shifting of the burden at the balancing

stage of a Québec Charter analysis under section 9.1.

II. THE ERRORS OF THE Q.S.C. JUDGE AND THE PROPER APPLICATION OF THE GOVERNING PRINCIPLES

75. With respect, the errors made by the Q.S.C. judge in connection with the

Objections Appeal are twofold.

76. First, in dismissing the objections made to the Questions, the Q.S.C. judge failed

to recognize the stand-alone right not to disclose the identity of Ma Chouette under

section 3 of the Québec Charter. Rather than apply Wigmore, the Q.S.C. judge

should have undertaken its analysis within the framework of section 3, and only

have resorted to the (modified) Wigmore doctrine for "case-by-case" privilege65 if

he had concluded that Leblanc did not benefit from a Québec Charter right not to

disclose the identity of a confidential source.

77. The requisite analysis would reveal that, under section 3, Leblanc enjoyed a right

not to disclose the identity of Ma Chouette because (i) in obtaining information

from Ma Chouette, Leblanc was clearly engaged in a news gathering function;

(ii) he had provided an undertaking to Ma Chouette to keep her identity

confidential and Ma Chouette would not have come forward but for the

undertaking of confidentiality.66 Further, any order by the Q.S.C. judge to compel

65 See paragraphs 73 and 74, supra.

66 In his affidavit filed in support of the G&M application for leave in connection with the Objections Appeal, Edward Greenspon, former Editor-in-Chief of the G&M, confirmed the role played by confidential sources in the news gathering process stating that "information from confidential sources is essential to the news gathering process" and that "[t]he greater the likelihood of being identified the more reluctant the source will become".


Leblanc to respond to the Questions would have violated that right, since answers

to the Questions may have revealed or, at the very least, tended to reveal,

Ma Chouette's identity.

78. Any suggestion that answers to the Questions would not tend to reveal

Ma Chouette's identity is completely unfounded. To argue otherwise is simply

untenable. For example, an affirmative answer to the question by counsel for

Polygone "est-ce que Ma Chouette est l'une des personnes visées [there were

twenty-two (22) such persons] par les ordonnances auxquelles s'attaque la

requête du Globe and Mail?" even on its own, would have been most revealing, let

alone when considered collectively with answers to questions such as "dans quel

ministère Ma Chouette œuvrait-elle ou avait-elle œuvré à l'époque où vous avez

initié les contacts avec elle?" and "nous donner une indication […] du niveau

hiérarchique, peut-être en utilisant le fait qu'elle était de haut, moyen ou bas

niveau hiérarchique dans l'appareil gouvernemental", and particularly to an

informed observer.

79. Under the section 9.1 balancing of Leblanc's right not to disclose the identity of

Ma Chouette against the ability of Polygone to obtain information, Polygone has

failed to establish at a bare minimum that it was necessary for it to know

Ma Chouette's identity in order to ultimately prove that the Government of Canada

possessed the requisite knowledge at the relevant time as per its prescription

defence, i.e., that there is no other way to make that proof. On that basis alone,

the objections to the Questions should have been upheld.

80. There would appear to be several avenues which Polygone has failed or declined

to fully pursue, which could allow it to prove what the Government knew and when,

such as for example conducting examinations of other persons known to have

been involved in the "Sponsorship Program", whether government officials,

representatives of other implicated ad firms, or other private sector participants.

81. Ultimately, it appears fairly clear that Polygone is seeking the identity of

Ma Chouette as a matter of mere convenience. Her identity may not even be


relevant to a prescription defence, and in any event, any facts necessary for that

defence can be obtained through other means. Polygone did not even seek to ask

the twenty-two (22) individuals named in the Examination Judgments what they

themselves knew and when, but merely whether they were Ma Chouette.

82. In addition, however, any balancing would have further tipped the scales in favour

of the right not to disclose. Thus, on the one hand, Ma Chouette was a critical

source of information which led to the revelation of perhaps the most infamous

political wrongdoing in recent Canadian history, to the great benefit of the

Canadian public. On the other hand, the underlying action against Polygone is of a

patrimonial nature, in which only monetary damages are sought, in respect of

which neither the G&M nor Leblanc are a party, and the issue to which the identity

of Ma Chouette is alleged to be useful does not pertain to the merits of the action

but instead to a technical defence.

83. The second error committed by the Q.S.C. judge was, once having determined,

with respect, wrongly, that the Wigmore doctrine governed, to apply it completely

devoid of the constitutional dimension of the present case, and to conclude "vite,

vite, vite" that it was "préférable" to allow the evidence to be made and entered in

the court record.

84. In fact, the Q.S.C. judge should have concluded that even if it is applicable, the

Wigmore test, as properly modified, was indeed satisfied. It would seem beyond

peradventure that the first three criteria of the Wigmore doctrine would be satisfied

in the present circumstances. First, Ma Chouette clearly undertook her

communications with Leblanc in a confidence that her identity would not be

disclosed, and Leblanc likewise assured her that he would not disclose her

identity. Second, this element of confidentiality certainly was essential to the full

and satisfactory maintenance of the relation between Leblanc and Ma Chouette;

indeed, the evidence reveals that Ma Chouette reasonably would not have

undertook her communications with Leblanc at all if she understood that her

identity could be disclosed. Thirdly, the relationship between journalist and


confidential source is certainly a relationship that in the opinion of the community

ought to be sedulously fostered, since any such relationship is critical to freedom

of the press.

85. As to the fourth criterion, Polygone would have had to establish that the benefit to

be gained by the disclosure of Ma Chouette's identity for the correct disposal of

the litigation would be greater than the injury that would inure to the freedom of the

press generally,67 to Leblanc's and the G&M's ability in particular to continue to

engage in news gathering, and to the specific relationship between Leblanc and

Ma Chouette. In this regard, the values enshrined by section 3 of the Québec

Charter (and section 2(b) of the Canadian Charter) suggest a compelling interest

in protecting Ma Chouette's identity from disclosure.

86. In this regard, Polygone has failed to establish that any benefit would be gained by

the disclosure of Ma Chouette's identity in connection with the correct disposal of

the litigation, let alone a benefit that would outweigh the values inherent in

freedom of the press. As explained, Ma Chouette's identity may not even be

relevant to a prescription defence, and in any event, any facts necessary for that

defence can be obtained through other means. Moreover, prescription is a

technical defence that does not go to the merits of the action against Polygone.

87. Having failed to satisfy its burden under the fourth Wigmore criterion, privilege

should attach to Ma Chouette's identity even in the absence of the stand alone

right not to disclose the identity of Ma Chouette under section 3 of the Québec

Charter.

67 As explained by the House of Lords in British Steel (A.B.A., vol. I, tab 3), "[t]heir

[newspapers'] sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power — in companies or in government departments — would never be known".


III. THE DISCONTINUANCE APPEAL

A. THE RIGHT TO DISCONTINUE

88. Pursuant to article 262 of the Code of Civil Procedure, R.S.Q. c. C-25 (the

"C.C.P."), a party has the right to discontinue its proceeding:

262. A party may at any time discontinue his suit or proceeding.

89. The consequences of discontinuance are set out by article 264 C.C.P.:

264. Discontinuance replaces matters in the state in which they would have been had the suit to which it applies not been commenced.

It involves the obligation to pay the costs occasioned by the suit, which costs are adjudged to the opposite party by the clerk, upon inscription.

90. The right to discontinue a proceeding is quasi-absolute, subject only to certain

specific limitations. First, a party cannot discontinue where it intends to re-launch

the proceeding in question.68 Second, a party cannot discontinue where to do so

would deny the other party an advantage that has been conferred by the

proceeding in question.69

B. THE ERROR OF THE Q.S.C. JUDGE

91. The Q.S.C. judge was, with respect, wrong to reject the G&M's discontinuance of

the Revocation Motion. The G&M truly intended by discontinuing the Revocation

Motion to abandon the relief which it sought thereby, namely, to revoke and set

68 Droit de la famille – 713, [1990] R.J.Q. 2115 (C.A.) (A.B.A., vol. I, tab 12). For

example, a party cannot discontinue simply to re-initiate the proceeding under a more favourable statute.

69 L'Espérance v. Dame Atkins, [1956] B.R. 62; Graham-Albulet v. Albulet, [1977] C.A. 323. For example, a party cannot discontinue if the other party has launched a motion to dismiss and for damages against the proceeding in question (175809 Canada inc. v. 2740478 Canada inc. (2000), AZ-50079210 (C.A.)).


aside the Examination Judgments and to order that any evidence gathered

pursuant thereto be excluded from the court record.

92. The Intervention launched by the G&M and Leblanc was directed at obtaining

clearly distinct relief, specifically, to ensure that the G&M and Leblanc had the right

to contest future applications by the parties to force the disclosure of the identity of

Ma Chouette. The Q.S.C. judge was therefore, with respect, patently wrong to hold

that the G&M by its intervention had merely "changer leur véhicule procédural".

93. Furthermore, the filing of the discontinuance did not deprive Polygone or the

A.G.C. of any right. To the extent that Polygone or the A.G.C. regarded the

examination of Leblanc as necessary, they are free, if they see fit, to call Leblanc

as a witness at trial. There was simply no prejudice to Polygone or to the A.G.C.

that could not have been amply compensated by an award of costs or that would

have warranted the deprivation of the G&M's right to discontinue.

C. APPROPRIATE RELIEF

94. Should this Court be inclined to allow the Objections Appeal, and since the G&M

sought to discontinue the Revocation Motion only because it believed that it could

not otherwise protect the identity of Ma Chouette, the Discontinuance Appeal

would thereby be rendered moot. Alternatively, should this Court be inclined to

dismiss the Objections Appeal, but to allow the Discontinuance Appeal, then

consistent with the reasoning of this Court in MacDonald v. City of Montreal,

[1986] 1 S.C.R. 460 (A.B.A., vol. II, tab 23) (p. 503) and its progeny, the matter

should not be returned to the Q.C.A. for determination. Rather, the judgments of

both the Q.C.A. and the Q.S.C. judge should be set aside and the "Contestation"

to the discontinuance rejected.

- 40 - Appellant's Factum Order sought _______________________________________________________________________

PART IV - ORDER SOUGHT CONCERNING COSTS

95. Costs should be awarded to the G&M in both Appeals in this Court and in the

courts below.

PART V - ORDER SOUGHT

FOR THESE REASONS, the G&M requests an order:

! ALLOWING the Objections Appeal;

! SETTING ASIDE the judgment of the Q.S.C. judge appealed from; and

! MAINTAINING the objections to the Questions.

OR IN THE ALTERNATIVE, the G&M requests an order:

! ALLOWING the Discontinuance Appeal;

! SETTING ASIDE the judgment of the Q.C.A. appealed from and the judgment of

the Q.S.C. judge; and

! REJECTING Polygone's contestation of the G&M's discontinuance of the

Revocation Motion.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED AT MONTRÉAL, this 16th day of July, 2009.

DAVIES WARD PHILLIPS & VINEBERG LLP

William Brock, Esq. Brandon Wiener, Esq.

Of counsel for the G&M

- 41 -

Appellant's Factum Table of Authorities

PART VI - TABLE OF AUTHORITIES

JURISPRUDENCE ..................................................................................Paragraph(s)

175809 Canada inc. v. 2740478 Canada inc. (2000), AZ-50079210 (C.A.) .........................90

2747-3714 Québec Inc. v. Québec, [1996] 3 S.C.R. 919 .........................54

Ashworth Security Hospital v. MGN Limited, [2002] UKHL 29 ................... 39, 65

B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214 .........................47

Bisaillon v. Keable, [1983] 2 S.C.R. 60 .........................69

Branzburg v. Hayes (1972), 408 U.S. 665 .........................39

British Steel Corporation v. Granada Television Ltd. (1981), 1 All E.R. 417 (H.L.) ................... 35, 85

Bruker v. Marcovitz, [2007] 3 S.C.R. 607 ................... 51, 62

Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421 ....... 34, 37, 38, 64

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459 .........................32

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 ................... 32, 37

Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122 .........................34

Centre de réadaptation en déficience intellectuelle de Québec v. Groupe TVA inc., [2005] R.J.Q. 2327 (S.C.) ............. 54, 61, 71

Champagne v. Collège d'enseignement général et professionnel de Jonquière, [1997] R.J.Q. 2395 (C.A.) ................... 33, 45

Chaoulli v. Québec (Attorney General), [2005] 1 S.C.R. 791 .........................45

- 42 -


JURISPRUDENCE (cont’d) .....................................................................Paragraph(s)

Communauté urbaine de Montréal (Service de police) v. Commission des droits de la personne et des droits de la jeunesse (2001), AZ-50085552 (C.A.) .........................54

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 ................... 47, 63

Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860 .........................64

Desrosiers v. The King (1920), 60 S.C.R. 105 .........................67

Développements Hydroméga inc. v. Société Radio-Canada, B.E. 98BE-383 (S.C.) .........................71

Droit de la famille – 713, [1990] R.J.Q. 2115 (C.A.) .........................90

Drouin v. Presse ltée (La), [1999] R.J.Q. 3023 (S.C.) ............. 61, 70, 71

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 ................... 31, 32

Ernst v. Belgium (2004), 39 E.H.R.R. 35 .........................40

Ford v. Québec (Attorney General), [1988] 2 S.C.R. 712 .........................49

Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets, [2004] 1 S.C.R. 456 .........................69

Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647 ............. 46, 55, 60

Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec, [2004] 3 S.C.R. 95 .........................33

Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 .........................45

Goodwin v. United Kingdom, (1996), 22 E.H.H.R. 123 .........................40

Graham-Albulet v. Albulet, [1977] C.A. 323 .........................90

Grenier v. Arthur, [2001] R.J.Q. 674 (S.C.) ............. 61, 70, 71

Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 .........................73

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John v. Express Newspapers, [2000] All E.R. 257 (C.A.) .........................65

Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743 .........................68

Landry v. Diffusion Métromédia C.M.R. inc. (1999), AZ-99021634 (S.C.) .........................71

Le Sous-Ministre du Revenu du Québec v. Fava, [1984] C.A. 639 .........................69

L'Espérance v. Dame Atkins, [1956] B.R. 62 .........................90

M. (A.) v. Ryan, [1997] 1 S.C.R. 157 ................... 66, 73

MacDonald v. City of Montreal, [1986] 1 S.C.R. 460 .........................94

Mersey Care NHS Trust v. Robin Ackroyd, [2007] EWCA Civ 101 ................... 39, 65

Moysa v. Alberta (Labour relations board), [1989] 1 S.C.R. 1572 ................... 36, 66

Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252 .........................44

Néron v. Société Radio-Canada, AZ-50195361 (S.C.) .........................72

Ouellette v. La Capitale, Compagnie d'assurance générale, AZ-98021475 (S.C.) .........................72

Québec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228 ................... 43, 47

R. v. Commanda, 2007 QCCA 947 .........................55

R. v. Gruenke, [1991] 3 S.C.R. 263 ................... 66, 73

R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14 .........................66

R. v. Mentuck, [2001] 3 S.C.R. 442 ................... 47, 63

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R. v. Rahey, [1987] 1 S.C.R. 588 .........................47

Royal Victoria Hospital et al. v. Morrow, [1974] S.C.R. 501 ................... 69, 71

Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452 .........................67

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 .........................47

Slavutych v. Baker et al., [1976] 1 S.C.R. 254 .........................66

Société Radio-Canada c. Québec (Procureur général), 2008 QCCA 1910 .........................54

St. Elizabeth Home Society (Hamilton, Ontario) v. The Corporation of the City of Hamilton et al. (2008), 89 O.R. (3d) 81 (C.A.) .........................38

Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47 ....... 29, 50, 51, 59

Tremblay v. Hamilton, [1995] R.J.Q. 2440 (S.C.) ............. 46, 61, 71

X c. Société canadienne de la Croix-Rouge, [1992] R.J.Q. 2735, J.E. 92-1748 (C.A.) .........................54

Zurich Indemnity Co. of Canada v. Libman, [1997] R.J.Q. 657 (S.C.) .........................70

DOCTRINE

Ducharme, Léo - Précis de la preuve, 6th ed. (Montréal, QC: Wilson & Lafleur, 2005) .........................70

ROYER, Jean-Claude - La Preuve Civile, 4ème édition (Cowansville, QC: Éditions Yvon Blais Inc., 2008) ................... 69, 70

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OTHER SOURCES .................................................................................Paragraph(s)

Commission of Inquiry into the Sponsorship Program and Advertising Activities, Who is Responsible?: Fact Finding Report (Ottawa: Public Works and Government Services Canada, 2005) ...........................9

Code of Civil Procedure, R.S.Q. c. C-25, art. 262 and 264

46


47


48

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 2 (b) and 32(1)

49


50


51


52


53

Charter of human rights and freedoms, R.S.Q. c. C-12, s. 3, 5, 9, 9(2), 9.1, 23, 35, 54 and 55 (English version)

54


55


56


57


58


59


60

Charter of human rights and freedoms, R.S.Q. c. C-12, s. 3, 5, 9, 9(2), 9.1, 23, 35, 54 and 55 (French version)

61


62


63


64


65


66


67

Civil Code of Quebec, 1991, c. 64, art. 2857 and 2858 (as amended)

68


69


70

Civil Code of Lower Canada, 1865, c. 41, art. 1206 and 2712 (as amended)

71


72


73


74


75

Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12 and 13

The text of the Convention had been amended according to the provisions of Protocol No. 3 (ETS No. 45), which entered into force on 21 September 1970, of Protocol No. 5 (ETS No. 55), which entered into force on 20 December 1971 and of Protocol No. 8 (ETS No. 118), which entered into force on 1 January 1990, and comprised also the text of Protocol No. 2 (ETS No. 44) which, in accordance with Article 5, paragraph 3 thereof, had been an integral part of the Convention since its entry into force on 21 September 1970. All provisions which had been amended or added by these Protocols are replaced by Protocol No. 11 (ETS No. 155), as from the date of its entry into force on 1 November 1998. As from that date, Protocol No. 9 (ETS No. 140), which entered into force on 1 October 1994, is repealed.

Registry of the European Court of Human Rights September 2003

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 10

76

7

2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 � Freedom of expression

1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 � Freedom of assembly and association

1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 10

77

Human Rights Act 1998 (U.K.), 1998, c. 42, s. 1(1)

78

Human Rights Act 1998 (U.K.), 1998, c. 42, s. 1(1)

79

supreme court of canada - the globe and mail · 2010-10-21 · henri a. lafortune inc. 2005 limoges...

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