Commentary
A pair of Ontario court rulings recognize that a journalist may need to promise confidentiality to protect a source. But that may not be enough to stop the police and judges from demanding names if push comes to shove. J-Source media law editor Dean Jobb looks for lessons in the National Post and Hamilton Spectator rulings.

Commentary

April 7, 2008 – The National Post’s Andrew McIntosh is not entitled to protect the identity of a key source who aided his investigation into former prime minister Jean Chrétien’s financial affairs. Ken Peters of the Hamilton Spectator defies a court order to protect one of his sources, yet cannot be punished for contempt of court.

Ontario’s Court of Appeal issued these seemingly contradictory rulings within a three-week span earlier this year. The result is a partial victory for press freedom and some understandable confusion about whether Canadian journalists have the right to protect a confidential source.

First, the good news. The country’s most influential appellate court has recognized that journalists may have to promise to protect the identity of sources in order to do their jobs.

“It requires no blind leap of faith,” Justice Robert J. Sharpe noted in the Peters ruling, “to understand that a person who gives information to a journalist only on condition that his identity will not be revealed will be less likely to give that information if he knows that, despite the journalists’ assurance, his identity may in fact be disclosed.”

His colleague, Justice John Laskin, seconded that motion in the Post ruling. The “relationship between a journalist and a confidential source should be diligently fostered for the public good,” he wrote, adding that “some matters of public interest could not be thoroughly investigated or investigated at all without confidential sources of information.”

Journalists and media lawyers have long warned that exposing sources has a “chilling effect” on newsgathering, causing people with important information to clam up. It’s about time our courts took this warning seriously.

While there’s no blanket protection for journalists’ sources – as there is for the information exchanged between lawyers and their clients – both rulings recognize the media’s right to claim privilege, on a case-by-case basis, to protect a confidential source.

The bad news? To date not one journalist has been able to convince a court their sources are worth protecting.

McIntosh and the National Post came close. In 2004 an Ontario judge ruled the newspaper’s Shawinigate investigation was a story important enough to justify protecting the source of a leaked bank document, which suggested Chrétien was in a conflict of interest. Justice Mary Lou Benotto invoked the Charter’s guarantee of freedom of the press to quash an RCMP search warrant used to seize the document.

In overturning that ruling in February, Justice Laskin acknowledged “the gathering and dissemination of news and information without undue state interference is an integral component” of the media’s constitutional rights. But the Charter does not make journalists “immune from valid searches” or afford them “an automatic right to protect the confidentiality of their sources.” A balance must be struck between “the privacy interest of the press [and] the state or other societal interests in getting at the truth.”

The need to identify McIntosh’s source – and solve what Justice Laskin termed the “grave and heinous crime” of using a forged document to try to force a prime minister from office – outweighed any claim of privilege. The RCMP can seize and examine the document in search of fingerprints and traces of DNA.

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The Peters case, as it turned out, was as much about the arcane law of contempt of court as it was about protecting sources. The issue was how Justice David Crane dealt with Peters’ refusal to identify who leaked a damning information about conditions at a nursing home.

The Spectator was ordered to pay more than $31,000 in costs. The appeal court found the penalty “excessive” and ruled that citing a reporter for contempt is a last resort. Peters’ source came forward on his own, the court noted, so the contempt finding was a moot point. The message to judges is clear – journalists trying to protect a source should be treated with respect, not as if their goal is to defy the court or subvert justice.

All of this should make journalists think twice before promising confidentiality to a source. As Justice Laskin warned, “journalists can never guarantee confidentiality.”

It’s good practice – not to mention legally and ethically sound – to warn sources that an iron-clad promise to protect their identities is impossible. Journalists can promise to do everything in their power to protect confidentiality, but if they make a blanket promise they do so at their peril. Protect yourself by negotiating an exit strategy, allowing you and the source to revisit the promise if legal action is taken to expose the source.

John Miller has defended the National Post ruling as striking the proper balance between the rights of journalists and the need to fight crime. “An RCMP forgery investigation,” he noted in a Globe and Mail opinion piece, “was more important than Mr. McIntosh and the Post protecting the identity of their anonymous source.”

I’m not so sure. A police investigation can be a poor way to get to the bottom of a political scandal – think Airbus. While McIntosh’s document may yield some evidence to identify his source, that will not expose a forger. There’s evidence McIntosh’s source obtained the document from another, anonymous source and merely passed it along. One suspects this really about chasing a leaker, not fighting crime.

The Post is seeking leave to appeal to the Supreme Court of Canada, and hopefully the high court will seize the opportunity to clarify when journalists can protect sources. As well, Bloc Québecois MP Serge Ménard has introduced a private member’s bill to formalize the evolving common law principles in an American-style shield law. His proposed amendments to the Canada Evidence Act – which passed second reading last fall – would oblige judges to consider alternative means of obtaining information and the media’s right to gather news before issuing a search warrant or demanding testimony that would reveal a confidential source.

In the meantime, as Miller notes, journalists should remain wary about making an unconditional promise to protect a source.

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Dean Jobb is an assistant professor of journalism at the University of King’s College in Halifax and author of Media Law for Canadian Journalists, available from Emond Montgomery Publications.