Decision reinforces case-by-case approach to protecting sources

The Supreme Court of Canada has sent the case of a Globe and Mail reporter who refused to identify an anonymous source used in stories about the Quebec sponsorship scandal back to Quebec Superior Court with guidelines on how to resolve it. In today’s decision, the Supreme Court said journalists should be able to protect confidential sources if they can show it is in the public interest, and such cases must be resolved on a case-by-case basis.

The Globe and Mail called the decision a significant triumph “in that it creates strong protection for journalists who are asked to reveal their anonymous sources.” An initial Toronto Star report describes the decision as bolstering the right to protect sources, while the National Post headlined its story “Supreme Court silent on media right to protect sources” and Quebecor Media said the court “failed to resolve” the issue.

The case involved Globe reporter Daniel Leblanc, who wrote a series of stories on the sponsorship scandal. Leblanc was called to testify in a case that the federal government launched against Groupe Polygone Editeurs Inc., a Montreal advertising firm, to recover $35 million paid to the firm by the former Liberal government. The Quebec Superior Court ordered him to answer questions about the source identified only as Ma Chouette in his stories. He was asked whether Ma Chouette worked for a particular government department and on what dates he communicated with the source.

Arguing that the answers to these questions would be enough to identify the anonymous source, Leblanc refused to answer. The Globe launched an appeal of the Superior Court order.

The Supreme Court ruling means the issue will now return to the Quebec Superior Court, but that the court must first determine that the questions are relevant to the case and then apply what are known as the Wigmore criteria to determine whether Leblanc should be compelled to answer them.

The Wigmore criteria, as outlined in the decision, are (1) the relationship (between journalist and source) must originate in a confidence that the source’s identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

“Ultimately,” the decision reads, “these matters are for the judge to determine, but in this case they were never considered because neither party was permitted to make submissions or tender evidence on the issue.”

The decision follows a similar one (previously reported by J-Source) involving National Post reporter Andrew McIntosh, who received a document that appeared to link former Prime Minister Jean Chretien with the owner of a golf course in his Shawinigan, Que., riding and a loan from the Federal Business Development Bank of Canada. McIntosh had declined to turn over the document – alleged to be a forgery – to police for investigation.

 In that case the court ruled against McIntosh on the facts of the case and against the existence of a blanket right for journalists to protect anonymous sources, but did state that such a right can exist where the media can show that the harm caused by disclosure would outweigh the benefit.

The latest decision “helpfully affirms that the common law principle articulated in National Post also apply in Quebec,” said John Norris, a member of the Canadian Journalists for Free Expression board and co-counsel for McIntosh in the National Post case.

“The emphatic repetition of the holding in National Post that a confidentiality undertaking should be breached “only as a last resort” is particularly welcome,” said Norris, who suggested that the Globe and Mail ruling may have enhanced the National Post test by emphasizing the likelihood that by answering the questions Leblanc would have identified his source. In the National Post cost, Norris said, it was less clear that the police examination of the document would reveal the identity of its source.

Today’s ruling “reaffirms the availability and force of the journalist-source privilege as a legally recognized and enforceable protection, on a case by case basis,” said Philip Tunley, a lawyer and member of the CJFE board. “What is the better news here, on the better facts, is that the privilege is enforced by the Court and the journalist and his sources are protected, unlike the National Post case.”

At the same time, the Supreme Court overturned a publication ban in which the Superior Court judge had prohibited Leblanc from publishing further details of settlement negotiations between Groupe Polygone and the federal Attorney-General’s office.

Although whoever leaked those details breached a legal obligation to confidentiality, the Globe had no such legal obligation and to require the media to ensure that a source had not violated such an obligation before publishing information “would place too onerous an obligation on the journalist to verify the legality of the source’s information,” the decision said. “It would also invite considerable interference by the courts in the workings of the media.”

“This seems to me to be a major step forward,” Norris said.