By Dean Jobb

The furore over Hamilton Spectator reporter Ken Peters’ contempt conviction for refusing to betray a source raises two crucial questions for all of us. Do Canadian journalists have the right to protect confidential sources? And if we don’t, how should we deal with sources who risk retribution, even their lives, if their identities are revealed?

The answer to the first question is no, as the Peters case made very clear. In early December an Ontario Superior Court judge, David Crane, ordered the Spectator to pay $31,600 in legal costs after Peters refused to reveal who leaked documents he used in a story nine years ago.

Peters promised not to reveal the source’s identity and, to his credit, he honoured his promise. His bosses, to their credit, have backed him and vowed to appeal. Crane’s only concessions were to deal with Peters under the civil law, leaving the reporter free of the stigma of a criminal record, and to spare him from serving jail time.

This was not an idle inquiry by a nosy judge. The identity of Peters’ source is at the heart of a $15 million lawsuit the operators of a Hamilton nursing home have filed against civic officials they accuse of defamation and negligence. Someone leaked documents to Peters alleging the mistreatment of residents and staff, information the home claims was false and the city knew was false.

Our courts have always maintained that journalists who have information relevant to a court case are in the same position as any other citizen. A witness who refuses to answer a question when summoned to court risks being convicted of contempt, and may be fined or wind up behind bars as punishment.

In the Peters case, the judge said the reporter’s refusal to answer created a “crisis” in the trial of the nursing home‘s lawsuit against the city. “The only witness to a most central issue in this very long trial had refused to provide his evidence,” Crane said in his ruling. “Society is about limits and citizenship is about subjecting ourselves to the law. A direct challenge to the authority of the law in the face of the court, when found, must be met and defended against on behalf of the administration of justice.”

Many in the media have condemned the ruling, arguing the courts should respect the confidentiality of journalists’ sources. Unfortunately this is not the law in Canada, at least not yet.

Journalists could be forgiven for thinking it is. In January 2004 Mary Lou Benotto, one of Crane’s fellow Superior Court judges, described confidential sources as “essential to the effective functioning of the media in a free and democratic society.”

Benotto ruled the RCMP had no right to seize documents leaked to National Post reporter Andrew McIntosh about the Shawinigate affair. For the first time in Canada, she extended the concept of privilege, the kind of protection that prevents the disclosure of information passed between lawyers and clients, to the relationship between journalists and sources.

But Benotto’s ruling did not create blanket protection for journalists‘ sources. She called McIntosh’s situation unique and stressed that his stories involved serious allegations involving the country’s highest elected official, the prime minister.

Benotto’s ruling did not tie Crane hands, only an appeal court precedent could do that, and he was facing a different situation. The police wanted to run forensic tests on McIntosh’s documents to try to identify who leaked them, something Benotto considered a fishing expedition with little chance of success. Crane was dealing with a plaintiff seeking information crucial to the outcome of a trial.

Benotto’s ruling is under appeal and, if upheld, may refine and even expand when journalists can claim privilege. The expected appeal in the Peters case also could clarify when judges can demand that sources be identified.

Perhaps most galling for journalists was Crane’s mini-lecture on how they should do their jobs.

Peters testified that he feared being shunned within the profession if he ignored his ethical responsibilities and betrayed his source. If journalists are being pressured to make promises they cannot keep, the judge remarked, there is an “oppressive” newsroom culture in which bosses expect their employee “pawns” to flout the law and bear the consequences.

The judge suggested journalists stop giving blanket promises of confidentiality and explain to their sources that they will do everything they can to protect their identities “to the full extent of the law” or will “exert all lawful means to protect the confidence.”

We may not like hearing this from a judge, but he’s only suggesting that journalists be honest and upfront with their sources.

The courageous stands of Peters, McIntosh and their newspapers may change the law for the better. In the meantime, journalists should stop making promises that could land them in legal hot water, unless they are willing to pay the fine or do the time, and start levelling with their sources.

Sources should be assured we will do everything in our power to protect them. But they should also be told that, in the unlikely event push comes to shove months or years down the road, a court may have the power to demand that the source be identified.

That’s the law and that’s the truth. And aren’t we supposed to be in the business of telling the truth?

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Dean Jobb, an assistant professor of journalism at the University of King’s College, is author of Media Law for Canadian Journalists, published by Emond Montgomery Publications.

This article originally appeared in Media, the magazine of the Canadian Association of Journalists.