Supreme Court protects journalists’ source

Posted: November 4, 2010 in Uncategorized

The Supreme Court of Canada concluded its extended examination of press freedom Friday by handing a qualified victory to a Globe and Mail reporter, whose fight to protect a confidential source continues.

The top court upheld the concept of journalistic privilege in the province of Quebec in a 9-0 decision, but ruled that reporters and their lawyers have to assert that qualified right on a case-by-case basis. 

The nine justices ordered a Quebec trial court to reconsider the case of Daniel Leblanc, who has refused to reveal the identity of the anonymous source behind his groundbreaking stories about the federal sponsorship scandal.

Leblanc and his lawyer called Friday’s decision a victory, but the case has been sent back to Quebec Superior Court to weigh the pros and cons of allowing the reporter to continue protecting his source.

The Supreme Court outlined a set of rules to guide the Quebec court. It ruled journalists should be forced to reveal sources only when there is no other way to get information that is considered vital for the administration of justice.

The ruling is the latest in a series to address the practice of journalism, from source-protection issues, publication bans to defences for media organizations in libel cases.

In Friday’s ruling, as well as in a May decision involving the National Post, the court refused to create a blanket constitutional protection for journalists, saying they are a “heterogeneous and ill-defined group of writers and speakers.”

The ruling laid out a four-point test that gives judges “a mechanism with the necessary flexibility to weigh and balance competing public interests in a context-specific manner.”

Friday’s ruling stems from a lawsuit filed by the federal government against advertising firm Groupe Polygone to recoup $35 million in sponsorship money paid by the former Liberal government.

In that case, a Quebec Superior Court judge ordered Leblanc to answer questions from Polygone’s lawyers about his sources.

Leblanc has steadfastly refused to name the source he code-named “ma chouette” or “my sweetie.”

The Quebec court never heard specific arguments on the source-protection issue when it originally heard the case, but the trial judge still made his order compelling Leblanc’s co-operation.

“It is for the party seeking to establish privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require,” Justice Louis LeBel wrote Friday for the majority.

“If Mr. Leblanc’s answers were almost certain to identify MaChouette then, bearing in mind the high societal interest in investigative journalism, it might be that he could only be compelled to speak if his response was vital to the integrity of the administration of justice. Ultimately, these matters will be for the judge to determine, but he must consider them.”

Leblanc called the ruling a victory because the court recognized the concept of journalistic privilege, but said he wanted to study it further.

“I think the Supreme Court has recognized the importance of the work of journalists, the protection of sources and that’s why I think it is a victory today.”

Globe lawyer William Brock said the decision is a victory for the public because it gives potential whistle blowers the protection from reprisals that they require in order to come forward with information of wrongdoing.

“This judgment gives substantial protection to confidential sources. We never asked for, and I don’t think there could be absolute, unconditional protection because I think everyone realizes there will always be certain exceptional situations,” said Brock.

“Someone else faced with knowledge of something like the sponsorship scandal in the future is going to be comfortable coming forward and saying, I’m going to do something about this.”

But Osgoode Hall law professor Jamie Cameron said that although the case is clearly a win for Leblanc and all journalists, the Supreme Court has still been reluctant to grant Canadian reporters some of the same protections as their foreign counterparts.

“The problem is that the privilege does not have constitutional status and is left to the uncertainties of case-by-case decision making,” said Cameron, who represented the Canadian Civil Liberties Association, which was granted intervener status in the case.

“The time has come for Canada to follow the lead of the U.S. and other countries, and adopt a shield law that would protect the journalist-source privilege.”

In a case involving the National Post newspaper earlier this spring, the court recognized the right of reporters to protect confidential sources, but concluded it was not an absolute right.

The ruling meant that the Post was ordered to turn over a document that had been leaked to reporter Andrew McIntosh at the height of what was known as the Shawinigate affair. McIntosh, who has since quit the Post, was investigating business dealings in ex-prime minister Jean Chretien’s riding.

McIntosh received an envelope containing what appeared to be an internal loan document from the Business Development Bank of Canada. The bank said the document was a forgery, and called in the RCMP, which issued a search warrant.

An RCMP spokesman would not comment Friday on whether it ever followed up and seized the document, saying their investigation was still active.

Cameron said the recent Supreme Court rulings have produced mixed results for journalists.

“There have been positive developments as well as setbacks, in cases such as National Post. The court has been supportive of press freedom, but only to a point. Changes for the benefit of the media and the press are set in a framework of caution and incremental change,” she said.

But Brock said a ruling that established a new libel defence for journalists, as well as the Post and Globe cases have been good for the craft.

“These decisions are good for journalists, and more importantly it reflects the importance the Supreme Court has placed over the past few years on the journalistic function and the role it plays in a free and democratic society.”

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