The right to protect whistleblowers

Canada’s highest court reserved its decision in the second of two cases that could affect journalists’ right to protect their sources. Cecil Rosner looks at the importance of whistleblowers here in Investigative Journalism and Grant Buckler examines the cases in Freedom of Expression.

In the fall of 1999, from his home in Hull, Globe and Mail reporter Daniel Leblanc spotted a giant hot air balloon in the shape of a Mountie on a horse, making an appearance at a Gatineau festival.

It struck the inquisitive reporter as strange. The RCMP was in serious financial straits at the time, and was asking government for an increased budget. Why was it spending money on giant balloons?

Leblanc filed an access to information request to find out more. He learned the balloon had been built in England at a cost of about $100,000, but the government had paid $324,000 to rent in for 11 months. A marketing firm based in Ottawa, which had contributed to the ruling Liberal party, owned the balloon. Leblanc had a front page story.

That’s as far as the story might have gone, but the article encouraged insiders to begin feeding Leblanc more information about other unusual marketing schemes. It finally led to the revelation of the sponsorship scandal, an affair that arguably played the biggest role in the federal Liberal party’s eventual fall from power. Leblanc’s best source was a female whistleblower who identified herself only as MaChouette, or “my dear.” Her identity remains secret to this day.

But lawyers for advertising company Le Groupe Polygone Editeurs Inc. want Leblanc to reveal his sources, and the Quebec Superior Court has agreed. Yesterday, lawyers for the Globe appealed that ruling to the Supreme Court, which has reserved its decision.

Leblanc has indicated he would go to jail rather than be forced to reveal his sources.

The case parallels another fight over sources in the Shawinigate affair. Former National Post reporter Andrew McIntosh, who led the coverage, also received confidential information from sources. The RCMP secured a warrant and an assistance order to seize a leaked document from McIntosh so they could perform forensic tests and determine if the whistleblower had broken any law. McIntosh refused to hand the document over.

The case went to the Ontario Superior Court of Justice, where Justice Mary Lou Benotto quashed the warrant and order, and issued a landmark ruling. Among other things, she said: “If the journalist-informant relationship is undermined, society as a whole is affected. It is through confidential sources that matters of great public importance are made known. As corporate and public power increase, the ability of the average ctizen to affect his or her world depends upon the information disseminated by the press. To deprive the media of an important tool in the gathering of news would affect society as a whole. The relationship is one that should be fostered.”

But the Ontario Court of Appeal later overturned that ruling. “We do not diminish the press’s important role in uncovering and
reporting an alleged wrongdoing,” the court said. “But in
our society, it is the police who are charged with the crucial role of
investigating and prosecuting crime.” The case also now rests with the Supreme Court.

Protecting confidential sources is one of the most important yet vexing issues for investigative journalists. Often a whistleblower turns to the media as a last resort, the only path to correct a wrong after all other avenues have failed. But if the whistleblower fears that the media will be unable to protect his or her identity, then even the last resort will be lost.

Media lawyers have argued that confidential sources were important in many of the most important pieces of journalism over the last half century. But journalists in this country currently have no legal right to protect the identity of sources.

Journalists will be carefully watching the Supreme Court’s judgments when they come, as will future whistleblowers. If the situation governing source protection remains unchanged, one has to wonder how many scandals might go unreported in the future as a result.