Supreme Court rules on journalists’ right to protect confidential sources

The Supreme Court of Canada says journalists have no constitutional right to protect confidential sources, The Canadian Press reports.

“The court has ruled 8-1 against the National Post in a decade-old case dealing with a possibly forged document linked to the Shawinigate scandal.The justices upheld the legality of a search warrant and assistance order which demanded that the National Post and former reporter Andrew McIntosh hand over a brown envelope and a document supplied by a confidential source. The newspaper argued that turning over the material for DNA and fingerprint tests would likely reveal the identity of the source, known only as X. The court says journalists have no broad constitutional immunity to protect sources and any such claims have to be weighed on a case-by-case basis. It said in this instance, right of the police to investigate a potential crime outweighs the newspaper’s right to protect a source.”

The National Post reports:

“The judges, however, recognized for the first time that journalistic privilege against divulging sources can exist, but they concluded that each case must be weighed on its own merits.

“The immunity, where it exists, is case specific,” Justice Ian Binnie wrote for the majority.

“The law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing interests – including police investigations.”

“The ruling effectively endorses a practice that has been used in lower courts, including a 2008 Ontario Court of Appeal ruling against the National Post.

“Factors to be considered in a case-by-case analysis will include the seriousness of the alleged crime, the value of the evidence in question, and the public interest in respecting the journalist’s promise of confidentiality, said the Supreme Court.

“The legal battle began in the spring of 2001, after investigative reporter Andrew McIntosh received a plain brown envelope from a source.

“The National Post went to court seeking to overturn an order to surrender to the RCMP the unmarked envelope and a loan document that Mr. McIntosh received while writing stories about possible conflict of interest involving federal grants and loans in the Quebec constituency of then-prime minister Jean Chrétien.

“Police suspect that the document, which appeared to be from the Business Development Bank of Canada, is a forgery. They want the package to track down the source, possibly through securing a saliva sample from the stamp.

“The National Post claim to confidentiality failed on several fronts, with Justice Binnie concluding that “the strong public interest in the production of physical evidence” outweighs the “weak public interest in protecting an identity that is not likely to be disclosed.”

“Forgery is a serious crime,” he wrote.”