FACTUM OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
Court File No. 32601
B E T W E E N:
THE NATIONAL POST, MATTHEW FRASER and ANDREW McINTOSH
- and -
HER MAJESTY THE QUEEN
- and -
Appellants (Appellants)
Respondent (Respondent)
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF NEW BRUNSWICK,
ATTORNEY GENERAL OF ALBERTA, BELL GLOBEMEDIA INC., CANADIAN
BROADCASTING CORPORATION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION,
CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN NEWSPAPER ASSOCIATION,
ADIDEM/CANADIAN MEDIA LAWYERS ASSOCIATION, CANADIAN JOURNALISTS FOR
FREE EXPRESSION, CANADIAN ASSOCIATION OF JOURNALISTS, PROFESSIONAL
WRITERS ASSOCIATION OF CANADA, RTNDA CANADA/ASSOCIATION OF ELECTRONIC
JOURNALISTS, MAGAZINES CANADA, CANADIAN PUBLISHERS' COUNCIL, BOOK AND
PERIODICAL COUNCIL, WRITERS' UNION OF CANADA and PEN CANADA
Interveners
FACTUM OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION
Overview
1. The CCLA takes no position on the outcome of this appeal and limits its
argument to the test for establishing a privilege for confidential journalist sources in light
of the Charter. Newsgathering is at the core of s. 2(b)'s values, and confidential sources
are an important newsgathering tool. As such, an order under the Criminal Code that
would compel the disclosure of a confidential source – whether reasonable or not under s.
8 of the Charter – presumptively violates s. 2(b) of the Charter and must be justified
under s. 1.
2. The CCLA proposes a straightforward test. If the target of a search
warrant or assistance order can establish that (a) he or she is a journalist, and (b)
execution of the order would likely result in a breach of source confidentiality, then the
execution of the order violates s. 2(b) of the Charter. For the search to proceed, the
Tor#: 2307997.8