Court of Queens Bench of Alberta

Citation: Wasylyshen v. Canadian Broadcasting Corporation, 2005 ABQB 902

Date: 20051130 Docket: 0403 08497 Registry: Edmonton

Between: Robert Wasylyshen Plaintiff - and -

Canadian Broadcasting Corporation, Morris Karp, Mark Kelley, Cecil Rosner, Timothy Sawa, Tessa Sproule, Tania White, and Jim Williamson Defendants

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Vital O. Ouellette _______________________________________________________

Introduction [1] Robert Wasylyshen is seeking an order requiring the production of documents which the CBC states are protected from disclosure because they contain the identity of confidential sources.

Facts [2] In 2004, Wasylyshen, the former Chief of Police of the Edmonton Police Service, sued the CBC for defamation. Wasylyshen claims that he was maliciously defamed by the CBC in its television program Disclosure.

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[3] In his Statement of Claim, Wasylyshen alleges that the CBC stated or implied that while Wasylyshen was a member of the Edmonton Police Service, he frequently had sexual relations with prostitutes, he sexually assaulted and unlawfully confined the prostitutes, robbing them of their property, and he participated in an illegal coverup to ensure that no police investigation was undertaken into the allegations against him. [4] As part of the pre-trial discovery of records process, Wasylyshen requested that the CBC produce all relevant documents in its possession. The CBC objected to producing 627 pages of documents on the basis that the documents are unredacted copies of documents containing confidential source information, communication between solicitor and client, or irrelevant information, or two or more of the following. [5] Timothy Sawa was an investigative journalist with the CBC program Disclosure at the time of the broadcast in 2004. He has sworn an Affidavit stating that the information redacted from the pre-trial discovery documents contains information that identifies confidential sources who provided information to the CBC and its employees. He further swears that the confidential information was provided on the basis of a promise that the sources of the information would be kept secret and that the identity of the confidential sources would not be revealed. [6] The CBC also filed an Affidavit sworn by Harvey Cashore, who is currently a Senior Editor with the CBCs Investigative Unit and was previously a producer with the CBC program Disclosure. He swears that the protection of confidential sources is integral to investigative journalism. [7] The CBC is relying on the defence of qualified privilege relating to publication of legal proceedings; it is not relying on the defence of justification. [8] The legal proceedings about which the CBC claims qualified privilege include an Affidavit sworn by an officer of the Edmonton Police Service named Vern Colley. This Affidavit, sworn in June 2003, was filed in a Court of Queens Bench action identified as Ron Robertson v. Bob Wasylyshen, Chief of Edmonton Police Service, and Dwayne Gibbs, presiding officer. In 1983, Colley had been assigned to investigate allegations of police misconduct with prostitutes and his Affidavit contains information pertaining to that investigation. [9] The Disclosure program and subsequent broadcasts did not make reference to confidential sources. Nonetheless, Wasylyshen argues that the identity of the confidential sources is relevant to the determination of whether the CBC appropriately used the information in assessing the credibility and reliability of the Colley Affidavit. The CBC admits that the identities of the confidential sources are relevant to this element of the defamation action.

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Analysis [10] This case involves the interrelationship of four different elements: (1) the Alberta Rules of Court; (2) the Newspaper Rule; (3) the Charter; and (4) Wigmores test for qualified privilege. After reviewing the general principles of each of these elements, I will consider their collective application to the facts before me.

1. Discovery of Records - Rule 186.1 of the Alberta Rules of Court [11] Prior to 1999, the discovery process in Alberta was far reaching. It allowed discovery not only on matters determined to be relevant but also on matters which may have had an indirect relevance or which might have been relevant (Czuy v. Mitchell, [1976] 6 W.W.R. 676 (Alta C.A.)). [12] However, as a result of the amendments to the Alberta Rules of Court in 1999, the very broad scope of relevance as defined in Czuy v. Mitchell, supra, is no longer the law. Rule 186.1 has substantially narrowed the scope of relevance to questions that will or could reasonably be expected to significantly help determine an issue raised in the pleadings. According to Slatter J. in Weatherill (Estate of) v. Weatherill (2003), 337 A.R. 180, 2003 ABQB 69, the new rule was intended to provide a measure of control of the discovery process, while ensuring the appropriate degree of pre-trial disclosure. [13] I am satisfied that a strict application of Rule 186.1 would entitle Wasylyshen to be provided copies of the documents containing confidential source information at the discovery stage because the CBC has agreed that the information is relevant to the issues of this case. [14] It should be noted, however, that the Court does have an overriding discretion not to require the disclosure of certain documents if the prejudice in disclosing the documents is far greater than any benefit which may be derived from the disclosure (Liu v. West Edmonton Mall Property Inc. (2000), 279 A.R. 305 (Q.B.)). Furthermore, although documents may be determined to be more prejudicial than probative at the discovery stage, that the same analysis of prejudice versus probative value must be performed in order to determine the admissibility of the documents at trial.

2. The Newspaper Rule [15] While there is no recognized common law privilege allowing the press to maintain the confidentiality of its sources, in England, there is a rule of practice that a journalist will not be required to disclose his or her confidential sources in advance of the trial except in special or exceptional cases. This rule is known as the Newspaper Rule (R.E. Brown, The Law of Defamation in Canada, 2nd ed., (Toronto: Carswell, 1994-) at pp. 21-30 to 21-31). [16] It appears that the Newspaper Rule evolved to recognize the important role of the media in the absence of any constitutional guarantee of freedom of the press and it was, at

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least partly, a result of the limited pre-trial discovery process in the English system (interrogatories). [17] In 1981, the Newspaper Rule was codified in England as follows. No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime. [18] In England, therefore, freedom of the press, including the journalist-confidential source relationship, will always trump the rights of a plaintiff to access relevant and material information unless the plaintiff is able to show that the disclosure of such information is necessary in the interests of justice. [19] In Canada, the Newspaper Rule has been rejected in British Columbia (McConachy v. Times Publishers Ltd. (1964), 49 D.L.R. (2d) 349 (B.C.C.A.)). However, it has been applied in Ontario (Reid v. Telegram Publishing Co. Ltd., [1961] O.R. 418 (Ont. S.C.)). It should be noted that the contrary positions taken by British Columbia and Ontario occurred prior to the coming into force of the Canadian Charter of Rights and Freedoms (the Charter) in 1982. [20] In 1986, the Nova Scotia Court of Appeal recognized the Charter guarantee of freedom of the press in Coates v. The Citizen (1986), 74 N.S.R. (2d) 143. The facts in that case are not dissimilar from the facts in this case: certain journalists refused to identify persons who were alleged sources of information. The Court accepted that in exercising its discretion regarding the disclosure of the confidential source information, it had to balance the guarantee of freedom of the press as provided for in the Charter and the press interests in confidentiality versus the right of a plaintiff to obtain full disclosure. The Court of Appeal stated (at para. 10): In balancing the interests of the parties in a case such as this a judge in exercising his discretion must consider the principles pronounced by Lord Denning in Senior v. Holdsworth; Ex parte Independent Television News Ltd., [1976] 1 Q.B. 23 (C.A.): ... Next there is the special position of the journalist or reporter who gathers news of public concern. The courts respect his work and will not hamper it more than is necessary. They will seek to achieve a balance between these two matters. On the one hand there is the public interest which demands that the course of justice should not be impeded by the withholding of evidence.... On the other hand, there is the public interest in seeing that confidences are respected and that newsmen are not hampered by fear of being compelled to disclose all the information which comes their way....

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[21] The Newspaper Rule was next considered by the Saskatchewan Court of Appeal in the case of Wasylyshyn v. Canadian Broadcasting Corporation (1989), 73 Sask. R. 295. The Court did not rule on whether or not the Newspaper Rule should apply, as the evidence did not disclose that the journalists sources had asked for confidentiality. The Court also noted that s. 2(b) of the Charter was not argued before it. [22] In summary, it does not appear that Canadian Courts have been required to rule on the strict application of the Newspaper Rule where the evidence supports a confidential relationship and where s. 2(b) of the Charter has been raised.

3.

The Charter

[23] The Supreme Court of Canada (S.C.C.) has directed that when a Court is exercising its discretion regarding disclosure, it must do so having regard to the principles and values of the Charter (Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C. R. 835; Sierra Club of Canada v. Canada (Minster of Finance), [2002] 2 S.C.R. 522; Re Vancouver Sun, [2004] 2 S.C.R. 332). [24] In Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572, the S.C.C. affirmed a decision of the Alberta Labour Relations Board in which the Board found that neither the common law nor the Charter protected a journalist from being compelled to answer questions, under oath at a Board hearing, about her confidential sources. The S.C.C. declined to decide whether a qualified testimonial privilege existed at common law or under s. 2(b) of the Charter because the facts in this case did not justify such a conclusion. [25] The S.C.C. considered the Charters guarantee of freedom of the press more closely in Edmonton Journal v. Alberta (A.G.) (1989), 64 D.L.R. (4th) 577. In that case, Cory J., who concurred in the result and wrote on behalf of Dickson C.J.C. and Lamer J., suggested that in a democratic society, freedom of expression (which includes freedom of the press) is probably the most important guaranteed right under the Charter. As a result, the rights guaranteed under s. 2(b) of the Charter should only be restricted in the clearest of circumstances, (at p. 607). Cory J. also noted that the press plays a fundamentally important role in disseminating information raised in Court proceedings (at p. 610). [26] In Canadian Broadcasting Corporation v. New Brunswick, [1996] 3 S.C.R. 480, the S.C.C. elaborated on the Charter guarantee of freedom of the press. LaForest J., writing for the Court, confirmed his earlier finding in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421 that the guarantee includes both the right to gather and the right to transmit the information obtained (at para. 24). [27] A further example of the importance placed on s. 2(b) of the Charter is provided in the decision R. v. McClure, [2001] 1 S.C.R. 445. In that case, the S.C.C. recognized that the confidential relationship of journalist-source may be protected by privilege on a case-by-case basis.

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[28] The principle enunciated in R. v. McClure was in fact applied by the Ontario Superior Court in R. v. National Post (2004), 69 O.R. (3d) 427, where the Court concluded that a document provided to a journalist by a confidential source was protected by journalist-source privilege. The Court stated the following (at para. 48): Inherent in the concept of confidentiality is the ability of the media to protect the identity of the source. The evidence establishes that sources may dry up if their identities were revealed. Without confidential sources, many important stories of considerable public interest would not have been published. Confidential sources are essential to the effective functioning of the media in a free and democratic society. The Court went on to state (at para. 51): To compel a journalist to break a promise of confidentiality would do serious harm to the constitutionally entrenched right of the media to gather and disseminate information. [29] It has been established that judicial discretion must be exercised with the guidance of the values enshrined in the Charter. Further, the values guaranteed under s. 2(b) are extremely important in a free and democratic society and should not be overridden except in the clearest of circumstances. Indeed, freedom of the press plays a sufficiently fundamental role in our society that the relationship between journalists and their confidential sources may, in appropriate cases, be protected by privilege.

4.

Wigmores Test for Qualified Privilege

[30] In order to decide whether or not a particular journalist-source relationship is protected by privilege, the Court must determine whether the public good overrides the general duty owed by everyone to provide evidence that is relevant to assist in determining the truth. This determination requires the application of the following four criteria, as outlined by Wigmore: 1. 2. 3. 4. The communication must originate in a confidence; The confidence must be essential to the relationship in which the communication arises; The relationship must be one which should be sedulously fostered in the public good; If the first three requirements are met, the Court must consider whether the interest served by protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

[31] If the four criteria of Wigmores test are met, then a qualified privilege may be granted to prevent the disclosure of the identity of confidential sources before a trial.

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5.

The Collective Application of the Newspaper Rule, the Charter and the Wigmore Test

[32] Against this backdrop, I must now apply the general principles to the facts of the case before me. [33] In Moysa, supra, the S.C.C. left open the question of whether the combination of the Newspaper Rule, the s. 2(b) guarantee of freedom of the press and the Wigmore test for qualified privilege could result in the granting of a qualified privilege to the journalist-source relationship, if the evidence supported such a finding. Since the Moysa decision in 1989, the Superior Courts of Quebec and Ontario have in fact applied the Charter and the common law in certain cases in order to protect the journalist-source relationship. [34] For example, in Tremblay v. Hamilton, [1995] J.Q. no. 2949, the Superior Court of Quebec outlined the important role of the media and the importance of the Charter guarantee in opposition to the right to full disclosure. The Court stated the following (at para. 27): Mais dans chaque cas, le rle particulier de la presse, limportance de la libert de presse garantie larticle 2 b) de la Charte canadienne des droits et liberts de mme que lexigence formule larticle 2858 du Code civil doivent tre soupess en regard du droit de lautre partie dobtenir la divulgation quil recherche aux fins de son recours. [35] The Court went on to apply the importance of the Charter guarantees to the Wigmore criteria. The Court refused to order pre-trial disclosure for the following reasons (at para. 32): En effet, il me semble y avoir notamment un risque srieux que les rapports entre les mdias et leurs sources dinformation soient affects par la divulgation qui est demande. Et je ne suis pas en mesure de conclure, comme pourra bien mieux le faire le judge qui sera saisi du fond du litige, au caractre indispensable de la preuve que le demandeur dsire faire dans la contestation qui est engage, en obtenant le nom des sources du dfendeur Alain Vzina. [36] The Superior Court of Quebec again applied the Charter values and the Wigmore criteria to determine whether there should be immediate disclosure of the identity of confidential sources in Dveloppements Hydromega Inc. c. Socit Radio-Canada, [1998] A.Q. no. 240. In that case, the Court clearly determined that the disclosure of the identity of confidential sources is not appropriate at the pre-trial stage. The Court stated the following (at para. 8): Dans un premier temps, le Tribunal est davis quil ne faut pas sattarder longtemps sur le privilge soulev par les dfendeurs, dabord parce quil nest pas mis en doute par les demandeurs et quil est bien tabli par la jurisprudence. Dans les circonstances, toute prcision qui mettrait en pril la confidentialit des sources des dfendeurs sera refuse ce stade-ci des procdures.

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[37] Most recently, in 2004, the Superior Court of Ontario in R. v. National Post, supra, relied on the common law case-by-case analysis and, after considering the effect of the Charter, decided that a document provided to a journalist by a confidential source was protected by journalist-source privilege. [38] I am of the view that the question of whether there exists a journalist-source privilege should be answered on a case-by-case basis. That determination is best made by taking into account the public policy rationale underlying the Newspaper Rule and by applying the Wigmore test for qualified privilege in accordance with the constitutional guarantee provided under s. 2(b) of the Charter. [39] The Newspaper Rule was created as a result of the publics interest in encouraging freedom of the press by maintaining the confidentiality of sources until the time of trial. This approach has been adopted in Canada, to varying degrees. While this underlying rationale remains relevant, in light of the clear applicability of the Wigmore principles and s. 2(b) of the Charter, the strict application of the Newspaper Rule becomes less important. [40] I agree with the reasoning of the Quebec Superior Court Judge in Tremblay v. Hamilton, supra, who stated that it is the trial judge who will be in the best position to determine whether the evidence is of such importance that it must be disclosed (see also Dveloppements Hydromega Inc. c. Socit Radio-Canada, supra). [41] The application of the Wigmore criteria points toward pre-trial protection of the CBCs confidential sources. The Affidavits of Timothy Sawa and Harvey Cashore clearly satisfy the first two criteria, and the third criterion has also been met, as is evident from the pronouncements of the S.C.C. noted earlier. [42] In determining the appropriate balance required in the final criterion, the Court is required to consider and apply any values which may be enshrined in the Charter. The value of the freedom of the press, which can include the protection of the journalist-source relationship, has been described by the S.C.C. as fundamental. The S.C.C. has also directed that the Charter guarantee should not be set aside except in exceptional circumstances. This guarantee must be weighed against the interests of getting at the truth and disposing correctly of the litigation. [43] The importance of getting at the truth cannot be understated. The entire justice system is reliant on getting at the truth. However, in my opinion, the trial judge will be in the best position to determine whether the disclosure is, in fact, necessary to obtain the truth and dispose correctly of the litigation. This position is supported by Wasylyshyns acknowledgment that the CBC may not have to reveal their confidential sources in order to maintain a defence of qualified privilege. [44] Wasylyshen argues that because the CBC may not have to reveal their confidential sources to maintain their defence, he may never obtain the full extent of the information the CBC had prior to relying on the Colley Affidavit. He argues that this may prevent him from testing that information, thereby limiting his ability to establish his claim that the CBCs

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conduct was careless and exceeded the legitimate purpose of the privilege. While Wasylyshen may have a valid argument, in my opinion, that argument will be best dealt with by the trial judge. [45] I am also mindful of the fact that the nature of the broadcast involved the police. As part of the administration of justice, the police hold significant power in our society, the result being that any person who may question the conduct of the police may have reason to fear repercussions. [46] Since the decision of whether disclosure of the confidential source is only being delayed, in light of the Charter, the interests served by protecting the communication outweigh its immediate disclosure, thus satisfying the last Wigmore criterion. [47] Accordingly, based on the facts of this case and the clear public policy rationale underlying freedom of the press and the protection of journalist-source relationships, I conclude that it is not in the public interest to order the immediate disclosure of the identities of the confidential sources.

Decision [48] For all of the reasons stated above, Wasylyshyns application for immediate disclosure of the documents that would disclose the identity of the confidential sources is denied. As I stated earlier, it is the assigned trial judge who will have the ultimate responsibility of determining whether or not the identity of the confidential sources should be disclosed. [49] However, in order to ensure that Wasylyshyn receives a fair trial, he is entitled to have the assigned trial judge make the determination regarding disclosure far in advance of the actual trial date. It would not be fair for Wasylyshyn to have to wait until the beginning of trial to have the disclosure question decided, as this could ultimately lead to a trial by ambush and/or an unwanted adjournment. [50] Therefore, upon this matter being set down for trial, a trial judge will be assigned by the Chief Justice or Associate Chief Justice of the Court of Queens Bench. The motion for disclosure will then be set down and heard before the assigned trial judge at least six months prior to the trial date. If, after the decision of the assigned trial judge, it is decided that further examinations for discovery are required, then such discoveries shall take place at least 90 days prior to the scheduled trial date. [51] This procedure will not only ensure that the trial proceeds as scheduled, but also that the parties will know the strengths and weaknesses of their case and will not be subject to surprise at the trial. [52] As agreed upon during oral submissions, I am prepared to review the documents to ensure that only information which could reveal the source has not been disclosed.

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Costs [53] Costs may be spoken to within 90 days of the date of this decision.

Heard on the 18th day of October, 2005. Dated at the City of Edmonton, Alberta this 29th day of November, 2005.

Vital O. Ouellette J.C.Q.B.A. Appearances: Gerald B. Robertson, Q.C. For the Plaintiff Fred S. Kozak and Matthew A. Woodley (Reynolds Mirth Richards & Farmer LLP) For the Defendants