Supreme Court rulings could clarify confidentiality of sources

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

On October 21, the Supreme Court of Canada reserved its decision in the second of two cases that could significantly affect Canadian journalists’ right to protect confidential sources.

The court heard an appeal of a Quebec Superior Court decision ordering Daniel LeBlanc, a reporter for The Globe and Mail, to identify MaChouette, an anonymous source who provided information for LeBlanc’s reporting on the Quebec sponsorship scandal.

Le Groupe Polygone Editeurs Inc., a Montreal publisher and event producer that is being sued in connection with sponsorship money it received from the federal government when the Liberal Party was in power, wants to know the source’s identity as part of its defence.

As The Globe reported Thursday, the defendant claims information about the source could help its defence, and that a person who does not want to testify in such a case should be forced to explain his or her reasons.

The Globe’s lawyers, meanwhile, argue confidential sources can be key to stories that expose wrongdoing at the highest level of government, and want to preserve a privileged relationship between reporter and source.

This is the second important case concerning protection of confidential sources to go before the Supreme Court this year. In May, the court heard an appeal of an Ontario Court of Appeal decision ordering the National Post and reporter Andrew McIntosh to hand over a document – alleged by the Crown to be forged – linking former Prime Minister Jean Chretien with a Business Development Bank loan to a Quebec hotel. The National Post reported on that decision in March 2008, and J-Source published this report on the appeal in May.

In that case, the Ontario court had concluded that because only access to the original document could prove or disprove the forgery charge, and because of the grave nature of the alleged offence, the right to protect a source should be overridden.

But it was significant that in that case and in another involving Hamilton Spectator reporter Ken Peters, the Ontario court recognized protection of sources as an aspect of freedom of expression that, at least in some cases, deserves protection under the Charter of Rights and Freedoms.

In both cases the Ontario court referred to the Wigmore test, developed by U.S. legal scholar John Henry Wigmore to determine when privilege should apply. According to Brian MacLeod Rogers, a Toronto lawyer who represented Ken Peters in the Spectator case and a coalition of media organizations in the Supreme Court appeal of the McIntosh case, this was a significant endorsement of the Wigmore test.

If the Supreme Court rulings acknowledge the importance of protecting confidential sources and make use of the Wigmore test, Rogers told J-Source, they could help clarify the right journalists in Canada have to protect confidential sources.

“To date in this country, we’ve never had the Supreme Court give a positive, clear ruling in favour of protecting journalists’ sources,” Rogers said. “So this is a critical precedent on that issue – the broad principle of what kind of protection is available at common law and under the charter for protecting those sources.”

Rogers wrote about the Peters and McIntosh cases at the Ontario Court of Appeal in the MLRC MediaLawLetter. Dean Jobb, an associate professor of journalism at University of King’s College in Halifax, discussed the McIntosh and LeBlanc cases in a recent issue of The Lawyers Weekly.

The Supreme Court has not yet ruled in the McIntosh or the LeBlanc case. The Ontario Court of Appeal ruling in the Peters case has not been appealed.