Commentary

By Dean Jobb

The Supreme Court of Canada has made it tough for lawyers, police and other investigators to “out” journalists’ sources.

The court’s Oct. 22 ruling in Globe and Mail v. Canada (Attorney General) 2010 SCC 41 stopped short of protecting the key source who helped Globe reporter Daniel Leblanc expose the sponsorship scandal. But it sends a strong warning that judges should force journalists to identify their confidential sources only as a last resort.

What’s more, the court ruled for the first time that the media has the right to publish confidential information provided by a source – even when the source has no right to divulge the information or has obtained it by illegal means.

The ruling arose from Leblanc’s efforts to shield the identity of a source known as MaChouette – a pet name that translates literally as “my owl.” The federal government is suing Groupe Polygone Éditeurs inc., a Quebec advertising firm, to recover millions of dollars paid out under the sponsorship program. Lawyers defending the company want to find out more about Leblanc’s source, and hope to show that Ottawa knew money was being wasted and waited too long to take legal action to recover it.

The Supreme Court ruled earlier this year in R. v. National Post, 2010 SCC 16 that journalists do not have a blanket right to protect sources. Instead, claims that a source’s identity is privileged – and shielded from disclosure – must be reviewed on a case-by-case basis. Judges apply what’s known as the Wigmore test to determine if the public interest in protecting the source – and promoting investigative journalism – outweighs society’s interest in prosecuting crimes and ensuring courts have the information needed to dispense justice.

In the National Post ruling, the court ruled that reporter Andrew McIntosh must hand over a document that could identify a key source for his investigation of government assistance to businesses in former prime minister Jean Chrétien’s Shawinigan riding. The RCMP allege the document is a forgery, created to damage Chrétien’s reputation, and need it to identify the suspected forger. After applying the Wigmore test, the court concluded it was more important to identify the source and allow the police investigation to proceed.

The Globe case came at the issue from a different direction. Leblanc was a witness in lawsuit and the source he’s protecting is a whistleblower, not a suspect. It was also unclear if the Wigmore test applied in Quebec, which has a civil law system that differs from the rest of Canada. Fortunately for Quebec journalists, the Supreme Court ruled it does and they have the same right to protect sources as their colleagues in other provinces.

The ruling, written by Justice Louis LeBel wrote on behalf of a unanimous court, provides a clearer sense of when a source is likely to be protected, and sets the bar high.

First, the source’s identity must be relevant to a court action or investigation – that goes without saying – but it also must go to the heart of the matter. Another factor is whether the journalist is a witness or one of the parties directly involved in the litigation; if the journalist has a personal stake in the outcome, a source’s identify is more likely to be a central issue.

A “crucial” factor, the court added, is whether the information sought could be discovered without compromising the identity of a source. Other witnesses and sources of information “ought to be exhausted” and revealing a journalist’s source should be “a last resort.”

In the final analysis, judges must consider “the high societal interest in investigative journalism” and should demand a source’s identity only when the information is “vital to the integrity of the administration of justice.” Lawyers who have reviewed the ruling consider that a high hurdle, and those seeking to expose a source must show a grave injustice will result if the source is protected.

That alone is reason for journalists to celebrate. But overlooked in most news coverage is a ruling-with-the-ruling that sets an important precedent on the issue of whether journalists are entitled to publish confidential information.

The court overturned a publication ban that barred Leblanc and the Globe from reporting on negotiations between the federal government and Groupe Polygone to settle their lawsuit.

While Justice LeBel stressed the importance of protecting confidential settlement negotiations, promises to keep such discussions secret “bind only the parties to settlement negotiations and their agents.” Leblanc and other journalists, he said, have a right to make the information public.

“In order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process,” the judge noted. It would be “a dramatic interference with the work and operations of the news media to require a journalist … to ensure that the source is not providing the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources of information.”

Justice LeBel relied on a U.S. Supreme Court precedent which, in his words, holds that “if a newspaper obtains truthful information about a matter of public importance, and does so in a lawful manner, then, absent a higher order public interest, the state cannot punish the publication of that information.”

It’s believed to be the first time the Supreme Court has ruled on whether Canadian journalists are bound to respect the confidentiality of the information they receive when gathering news.

Unfortunately for Leblanc and the Globe, the case has been sent back to the Quebec courts to decide whether the reporter must answer questions that could identify his source. A hearing is likely in the New Year but the Supreme Court’s strict test promises to make it difficult – if not impossible – to force Leblanc to reveal MaChouette’s identity.

And from now on, it should be equally difficult to force other journalists to “out” their sources.

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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 (updated second edition now available from Emond Montgomery Publications)