Supreme Court dismisses CBC appeal of order to identify source in military sex assault case

The Supreme Court of Canada decided on Thursday morning that it will not hear the Canadian Broadcasting Corporation’s challenge of a court order that demanded it identify a source and release related documents in the sexual misconduct case against Vice-Admiral Haydn Edmundson.

Edmundson was charged in December 2021 with sexual assault and committing indecent acts. The alleged offences date back to 1991. He has pleaded not guilty and denied any wrongdoing. 

A trial had been set for August 2023, but it has since been delayed.

Chuck Thompson, a spokesman for CBC, said the broadcaster was “very disappointed” its case would not be argued in front of the Supreme Court.

He said CBC “went the distance,” but that it has now exhausted all of its legal options.

Edmundson’s legal team was seeking to identify an unnamed source who was quoted in a March 2021 CBC story,  about nine months before the charges were laid against him.

The story reported that Edmundson, who was at the time managing Military Personnel Command — giving him authority over career consequences for military members found to have engaged in sexual misconduct — was himself under investigation, after being accused of sexually assaulting a subordinate. 

Edmundson’s legal team argued that because the information given during the police interview of the source — referred to as “X.X.” in court documents — was so similar to the information given to CBC by the unnamed source in the March 31 story, they were likely the same person.

The defence requested access to the notes of the CBC interview to determine whether the information provided to CBC News at that time is materially similar or different from the statement subsequently given to the police. 

Ontario Court of Justice Frank D. Crewe ruled in favour of Edmundson’s team, saying X.X. and the unnamed source were probably the same person. 

The judge concluded that while the Canada Evidence Act protects the anonymity of a journalistic source, that privilege was lost or waived when X.X. voluntarily gave a witness statement to police during its investigation. 

CBC News appealed that decision to the Ontario Superior Court of Justice, but that appeal was dismissed by Justice Calum MacLeod, who said there was “very good reason to assess the probability that X.X. was one of the sources.”

MacLeod also said that while journalistic sources are protected under the Canada Evidence Act, that protection is not absolute and has to be weighed against the public interest in the administration of justice. 

CBC News subsequently appealed MacLeod’s decision to the Supreme Court of Canada.

In his statement, Thompson said, “A journalist who cannot offer their source the protection of confidentiality to bring important stories to light cannot do their job or serve the public interest effectively.”

“CBC’s ability to seek out confidential sources to report important stories relies on its reputation for safeguarding its existing sources.”