Post appeals ruling that curbs source protection

Ontario’s highest court has overturned a ruling — the first of its kind in Canada — that granted a journalist the right to protect a confidential source. The Feb. 29, 2008 judgment of the province’s Court of Appeal authorizes the seizure of a loan document the National Post used as part of its “Shawinigate” investigation in the business dealings of former prime minister Jean Chrétien. The RCMP can now analyze the document, which the Business Development Bank claims is a forgery, to determine who leaked it. The Post and its former reporter Andrew McIntosh argued the tests could reveal the identity of a confidential source but the court said the Charter guarantee of press freedom does not make journalists “immune” to searches or give them “an automatic right to protect the confidentiality of their sources” In this case, the need to ascertain the truth through a police investigation outweighed the public interest in protecting the newspaper’s source.
See The Lawyers Weekly report on the ruling.

The Post will seek leave to appeal the ruling to the Supreme Court of Canada. “We believe that, except in the most extraordinary circumstances, reporters must be permitted to honour the promises of confidentiality they provide their sources,” Editor-in-Chief Douglas Kelly said in a March 25 press release. “Even scattered exceptions to such a rule would chill informants, and thereby cause investigative reporting to become a dead letter.”

Reaction: The president of the Canadian Association of Journalists, Mary Agnes Welch, issued a press release criticizing the ruling as “regressive” and “a major setback for press freedom and the public’s right to know.” But Ryerson University journalism professor John Miller, in a commentary in The Globe and Mail, argues the court struck the proper balance between press freedom and crime detection and journalists should “be wary about giving sources blanket, unconditional promises to protect their identities.”