By Dean Jobb

The next-day headlines focussed on the Supreme Court of Canada’s refusal to give journalists the constitutional right to protect sources, but they didn’t tell the whole story. There’s good news for journalists in the court’s May 7 ruling (R. v. National Post, 2010 SCC 16) in the case of the National Post, its former reporter Andrew McIntosh, and the possibly forged document at the heart of a nine-year legal battle to protect a source.

Chances were slim that the court would grant blanket protection to the relationship between journalists and sources. The law treats the information passed between lawyers and their clients as “privileged,” but not even medical records or a confession to a priest enjoys this kind of hands-off treatment.

It was possible the court would make it tougher to unmask sources, and require those seeking to identify a source to prove that a promise of confidentiality should be ignored. But that argument was rejected – it remains up to the journalist to show that a source is worthy of protection.

The court did find that journalists like McIntosh – who promised to protect a key source behind his so-called Shawinigate investigation into former prime minister Jean Chrétien’s business dealings – can claim the right to protect a source on a case-by-case basis.

The crucial factor is whether protecting the source is more important than ensuring crimes are properly investigated or that a court hearing a criminal case or lawsuit has access to the information needed to ensure justice is done.

In McIntosh’s case, eight of nine judges found it was more important to try to find out whether a bank document the source leaked to McIntosh was a forgery, designed to implicate Chrétien in a conflict of interest. The RCMP wanted to test the document for fingerprint or traces of DNA that could identify who created or leaked it. Even though the court acknowledged these forensic tests may fail, it authorized the police to seize and examine the document.

While this is bad news for McIntosh and the Post, here’s the good news for the rest of us:

 Justice Ian Binnie’s majority ruling recognized the “special position” of the media, given the Charter’s guarantee of freedom of the press, and said judges should strive to “protect the media’s secret sources where such protection is in the public interest.”

 The court accepted the media’s position that confidential sources play a crucial role in news coverage, especially investigative journalism. “Unless the media can offer anonymity in situations where sources would otherwise dry up, freedom of expression in debate on matters of public interest would be badly compromised,” Binnie said. “Important stories will be left untold.”
 
 Investigative journalism plays a vital role in addressing the “democratic deficit in the transparency and accountability of our public institutions” the court noted, shining “the light of public scrutiny on the dark corners” of public and private institutions.

 Justice Binnie identified a number of important stories that came to light thanks to confidential sources or whistleblowers, including the tainted tuna scandal, secret commissions paid on Air Canada’s purchase of Airbus jets, and concerns over restaurant inspections in Toronto and illegal slaughterhouses in Ontario. Without “the free flow of accurate and pertinent information” on such issues, he wrote, “democratic institutions and social justice will suffer.”

 The ruling also recognizes that, when a reporter gives an assurance of confidentiality (usually after consulting an editor), journalists’ professional ethics demand that the promise be kept. Judges should be hesitant to cite journalists for contempt if they refuse to identify a source, the court said, and endorsed the Ontario Court of Appeal’s 2008 decision to wipe out a contempt finding after Hamilton Spectator reporter Ken Peters refused to testify about his sources.

 The court drew a distinction between the National Post case, which involves a search warrant to seize a piece of physical evidence, and future privilege claims to protect whistleblowers or informants not suspected of wrongdoing. That could bode well for the court’s ruling, expected later this year, on whether Globe and Mail reporter Daniel Leblanc can shield a key source behind his investigation into the federal sponsorship scandal.

Another factor in the ruling was whether people other than journalists should be entitled to protect sources. The court was concerned that the definition of journalist is expanding in the Internet age, allowing people to exercise their right to freedom of expression “by blogging, tweeting … or publishing in a national newspaper.”

Granting a blanket right to protect sources to “such a heterogeneous and ill-defined group of writers and speakers and whichever ‘sources’ they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it … would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.”

There’s another problem – not all journalists or media organizations agree on when sources should be protected or whether the duty to protect evaporates if the source lies or misleads a journalist. “There is no formal accreditation process to ‘licence’ the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards,” the court noted, making a system of blanket source protection impossible.

The National Post ruling applies across the country and creates a legal structure for determining when Canada’s courts should protect journalists’ sources. Privilege claims will be considered on a case-by-case basis and journalists will have to demonstrate it’s more important to protect than expose the source. And when the claim is tied to a source accused of a crime or with information that could help solve a crime, it will be harder – but not impossible – to shield the source.

The court also avoided setting a precedent that could allow sources to manipulate the media while hiding behind a promise of confidentiality. “A source who uses anonymity to put information into the public domain maliciously may not in the end avoid a measure of accountability,” the court noted, citing the case of a White House official who leaked information to The New York Times in order to attack a critics.

 “The bottom line,” Justice Binnie noted, “is that no journalist can give a source a total assurance of confidentiality. All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed.”

In order words, be careful what you promise – and make sure the story and the information are important enough to justify the risk.

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Dean Jobb is an associate professor of journalism at the University of King’s College in Halifax and author of Media Law for Canadian Journalists (Emond Montgomery Publications)