The media march off to court

Dean Jobb

Originally published in the Winnipeg Free Press, September 1, 2009

A publication ban squelches media coverage of a terrorist plot and a sensational murder. Two newspapers must pay hefty libel awards after investigating allegations of wrongdoing. The courts threaten to expose the whistle-blowers behind two major political scandals.

These legal battles over freedom of the press have been waged in Ontario, Quebec and Alberta, one for more than seven years. All six are on the Supreme Court of Canada’s docket this fall — a perfect storm of media law issues that will reshape how journalists do their jobs.

This is the stuff of class discussions at journalism schools: Can a journalist protect a confidential source? Can a news outlet be sued for libeling someone if its reporters made every effort to get the story right? Does publicizing crimes make it impossible for suspects to have a fair trial?

But these issues are far from academic. The impact of the Supreme Court’s rulings will be felt far beyond the newsroom. At stake is your right to know what’s happening in your community and in your country.

Let’s start with confidential sources. The court should rule this fall on the National Post’s bid to protect a source behind reporter Andrew McIntosh’s investigation into former prime minister Jean Chrétien’s business dealings in his home riding — the so-called Shawinigate affair.

Ontario’s Court of Appeal has ordered the Post to hand over a bank document to the RCMP for forensic tests that could prove it’s a forgery and identify the person who leaked it. That person is a source McIntosh promised to protect, and the newspaper argues the Constitution’s guarantee of press freedom should trump the police investigation.

The same issue will be argued in November as The Globe and Mail and its reporter, Daniel Leblanc, fight to protect a key source of the paper’s investigation into the fraud-ridden Quebec sponsorship program.

The right of American journalists to protect sources is well-established — more than 35 states have shield laws to protect sources who may be risking their jobs, or even their lives — to reveal corruption and wrongdoing.

There are no shield laws in Canada, so the McIntosh and Leblanc rulings will establish the ground rules for journalists and sources across the country.

Another set of rulings promises to better insulate investigative journalism from the cold blasts of libel chill. The Toronto Star and Ottawa Citizen hope to overturn libel awards totalling more than $1.5 million and to establish “responsible journalism” as a defence to libel actions.

Courts in Britain and several Commonwealth countries created the defence to modernize defamation laws, which are good at protecting reputations but do little to encourage in-depth journalism on matters of public interest. Journalists who make reasonable efforts to verify an important story would be able to defeat a libel claim, even if facts turn out to be wrong or allegations cannot be unproven.

The defence already exists in Ontario and, if the Supreme Court makes it the law across the country, the media would have “the right to be wrong,” as Justice Rosalie Abella noted when one case was heard earlier this year. The Supreme Court should hand down a ruling on both appeals in the fall.

The remaining appeals tackle the assumption that our courts must suppress publicity about crimes and suspects.

Journalists have the right to report what happens in the courtroom but those charged with crimes have the right to be presumed innocent and to have a fair trial. To strike a balance, judges routinely ban publication of evidence presented at bail hearings and other pretrial sessions until the trial is over.

In the case of the Toronto 18 terrorism suspects, Ontario’s courts have taken the common-sense approach that the bail-hearing ban only applies to cases that will go before a jury. Alberta’s courts, on the other hand, endorsed a blanket ban imposed on a high-profile Edmonton murder case.

The Supreme Court must address some tough questions when it hears both cases this fall: Do media reports have the power to taint a jury? Are publication bans outdated in the era of the Internet and social media? Are there options, short of a news blackout, to ensure justice is done?

Six cases, three issues, one outcome — the rulings the court begins to roll out this fall will have a profound effect on the news Canadians read, hear and see.

Dean Jobb, an associate professor of journalism at the University of King’s College in Halifax, is author of Media Law for Canadian Journalists (Emond Montgomery Publications).