An effort to establish blanket protection for Canadian journalists’ right to protect the identity of their sources has failed, but the news is not all bad.
The Supreme Court of Canada ruled in an 8-1 decision that there is no blanket right to protect sources in Canada.
But Canadian Journalists for Free Expression (CJFE) described the ruling as “a mixed result with the good news outweighing the bad.”
“Although not a win for the National Post on the facts of the case, this decision is the strongest statement yet by our courts as to the basis on which the law protects journalists’ confidential sources,” said Phil Tunley, lawyer and member of CJFE’s board. “It establishes the analytical balance that must now be applied by all our courts in any legal proceedings to set that protection aside.”
“It is unfortunate that a journalist who has been scrupulously careful in his dealings with a confidential source is now being put in the position of having to break his promise or face legal consequences,” said Arnold Amber, president of CJFE. “But in the big picture, this has to be seen as a significant step forward for journalists in Canada.”
As the National Post noted in its report on the decision, the judges “recognized for the first time that journalistic privilege against divulging sources can exist, but they concluded that each case must be weighed on its own merits.”
“The law needs to provide solid protection against the compelled disclosure of secret sources in appropriate situations,” the decision reads, “but the history of journalism in this country shows that the purpose of (section 2.b of the Canadian Charter of Rights and Freedoms, defining “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” as fundamental freedoms) can be fulfilled without the necessity of implying a constitutional immunity.”
The decision says the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor “in appropriate circumstances.” But it continues: “The public’s interest in being informed about matters that might only be revealed by secret sources, however, is not absolute.”
With the growth of online media such as blogs, the court said, the media are too vaguely defined to allow such a right to be granted. A blanket right to conceal the identity of sources would “blow a giant hole in law enforcement and other constitutionally recognized values such as privacy,” Justice Ian Binnie wrote.
As a report in The Globe and Mail notes, source confidentiality is strongly protected in most U.S. states and Commonwealth countries.
The case arose after a source mailed National Post reporter Andrew McIntosh a document that appeared to link then-Prime Minister Jean Chretien with the owner of a golf course in Shawinigan, Chretien’s Quebec riding, and a loan from the federally run Business Development Bank of Canada.
Police believe the document was forged and want to find the person who sent it.