By Anna Chen
On Monday, March 21, 2011, CBC journalist Nancy Thomson will appear before the Supreme Court of Yukon to defend her right to journalist-source confidentiality. She will argue that she should not be forced to reveal her sources in order to help a Whitehorse newspaper defend itself against a defamation claim filed by Said Secerbegovic of Watson Lake, Yukon.
The Yukon News wants access to the interviews the veteran journalist conducted for an investigative report she wrote in 2004. After obtaining federal documents that revealed use of painkillers Tylenol 3 and Ativan in Watson Lake had more than tripled between 2002 and 2003, Thomson conducted an investigation with 11 interviewees who agreed to speak on the condition of anonymity. Her report implicated Secerbegovic, who she cites as the sole doctor and pharmacist in the town of Watson Lake in southern Yukon. The CBC investigative series sparked a public discussion that went all the way to the territorial legislature.
In November 2004, the Yukon News published an editorial about Thomson’s work. In 2005, Secerbegovic filed a lawsuit against the Yukon News for defamation, claiming that their editorial said he benefited financially by over-prescribing medication and he was “the cause of or related to the death of two men.” The Yukon News is seeking tapes of the interviews in order to exonerate themselves of the charges. CBC lawyers offered to provide Thomson’s notes with the names of interviewees blacked out, but this was rejected as the Yukon News’ lawyer, David Sutherland, believes that they would be required to testify in court.
Journalist-source confidentiality or privilege is vital for the work of journalists, giving them access to sources who have legitimate reasons to withhold their identity. “[They] feared retribution, embarrassment and further marginalization and ostracism if they were identified,” Thomson said. Breaching this trust would also affect her ability to continue working in the community, and has broad implications for Canadian journalism.
“It is very unfortunate that a media outlet is trying to force another journalist to reveal her sources,” said Arnold Amber, President of Canadian Journalists for Free Expression. “It’s very difficult to do investigative reports if people fear their identities will be exposed if they blow the whistle on what they believe are wrongdoings. We hope that these important interests will be taken into account in this case.”
“Honouring a promise to a confidential source is a bedrock principle of journalism,” Fred Kozak, the President of the Canadian Media Lawyers’ Association and CBC counsel, told the Whitehorse Daily Star, “even in circumstances where the information is sought by another news organization defending itself against a defamation lawsuit.”
“I’m completely stunned that one news organization would sue another news organization to reveal their sources,” said Ivor Shapiro, a journalism professor at Ryerson University in Toronto and J-source’s Founding Editor.
“I am confident that all of the players involved — so both the plaintiff [and] the defendant, and their counsel and the court — recognize that this is an important principle, not only for Nancy Thomson but for journalists and reporters everywhere,” Kozak said. “It’s the lifeblood of what they do. They gather information and they have to be able to offer some protection to people who are in vulnerable circumstances.”
In an earlier decision by the Supreme Court on The Globe and Mail reporter Daniel Leblanc’s confidential source “MaChouette” in a scandal that involved Montreal ad firm Groupe Polygone, Canada’s highest court maintained that journalist-source privilege must still be determined on a case-by-case basis, but instructed lower courts that privilege should be denied only when all other avenues have been exhausted, and the identities of sources are essential in the quest for justice.
Secerbegovich is also taking legal action against Thomson, with a trial set for May 2011.
UPDATE: Thomson’s sources will remain protected. The Supreme Court of Yukon confirmed on Monday that it agreed to the deal struck over the weekend by lawyers for the public broadcaster and the Yukon News.