Commentary
Former National Post reporter Andrew McIntosh’scourt victory to protect a key source in his Shawinigate investigation should resonate across the country. By Dean Jobb.

By Dean Jobb

January 21, 2004, will be remembered as both a good day and a bad day for journalists, the sources they rely on to inform the public, and freedom of the press in Canada. It was a bad day, of course, because a squad of Mounties descended on the home of Ottawa Citizen reporter Juliet O’Neill that morning, carting away anything that might identify the insider who leaked information on the case of Maher Arar, the Canadian man imprisoned and tortured in Syria.

But it was a good day for the media — indeed, a very good day — because in Toronto, a judge was handing down an important precedent that will ensure the authorities think twice before going after a journalist’s confidential sources. Justice Mary Lou Benotto of the Ontario Superior Court struck a powerful blow for press freedom, striking down an RCMP search warrant used to seize a document leaked in April 2001 to Andrew McIntosh, the award-winning National Post reporter who broke the Shawinigate scandal. The document was political dynamite — a Business Development Bank of Canada loan authorization that suggested then-prime minister Jean Chrétien stood to benefit from a 1997 decision to lend $615,000 to the Grand-Mère Inn.

According to the document, the inn owed $23,040 to J. & AC Consultants Inc., a Chrétien family holding company.As Justice Benotto noted: “This, if true, may have placed the prime minister in a conflict of interest.”

When McIntosh contacted the bank for comment, officials claimed the document was a forgery and called in the RCMP. An officer convinced an Ontario judge to issue a warrant to seize the document, so it could be analyzed for fingerprints and traces of DNA that might identify who leaked it.

While the document had been sent to the Post anonymously, McIntosh discovered it had come from a source he had promised to protect. The Post handed over the document in a sealed envelope and, backed by The Globe and Mail and the CBC, challenged the legality of the seizure.

Media lawyers attacked the warrant as a violation of the Charter of Rights and Freedoms. Forcing journalists to expose confidential sources, it was argued, tramples on freedom of the press and hinders the ability of media outlets to inform the public. Important stories — the sale of tainted food, the dumping of hazardous waste, scandals like Watergate — could go unreported.

Justice Benotto agreed. “Sources may dry up if their identities were revealed,” she wrote. “Confidential sources are essential to the effective functioning of the media in a free and democratic society.”

Sources may have valid reasons for seeking anonymity, she added. “They may, themselves, be breaching a duty of confidentiality.They may have stolen the information. They may fear economic reprisals. They may lose their jobs.

“They may fear for their safety. They may fear for the safety of their families.” She rejected the assertion of government lawyers that such actions should not be encouraged.

“If employee confidentiality were to trump conscience,” she said, “there would be a licence for corporations, governments and other employers to operate without accountability.”

The judge went on to consider whether McIntosh’s relationship with his source should be protected by privilege — a status Canadian courts have been reluctant to afford to the media.

While the law treats most information that passes between lawyers and their clients as confidential, journalists and their sources — like doctors and patients — must prove, case by case, that their relationship deserves to be protected from prying eyes.

Justice Benotto, applying a legal analysis known as the Wigmore test, found that McIntosh’s relationship with his source was worthy of protection.

What’s more, exposing his informant would harm an important societal interest while doing little to advance what amounted to a fishing expedition by police.

“It is through confidential sources that matters of great public importance are made known,” she wrote. “As corporate and public power increase, the ability of the average citizen 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.”

Since the judge who signed the search warrant failed to consider these important issues, Justice Benotto ruled, the seizure was invalid and both the document and McIntosh’s source were protected.

Ontario’s Ministry of the Attorney General has launched an appeal. Assuming the ruling stands, what will it mean for journalists? While courts outside Ontario are free to take a different approach, other judges are certain to find Justice Benotto’s reasoning to be sound and persuasive.

Her approach is firmly grounded in Supreme Court of Canada precedents that recognize the vital role of a free press and the media’s right to gather news.

The ruling will undoubtedly help the Ottawa Citizen‘s lawyers as they try to quash the warrant used to search O’Neill’s home. And in future, judges will have to consider the implications for press freedom before authorizing the police to raid newsrooms and reporters’ homes in search of insiders who leak information. In fact, Justice Benotto says media outlets have the right to be notified — and to assert the right to protect sources — before such warrants are issued.

If the influential Ontario Court of Appeal upholds her ruling, it will carry even more weight in other provinces.

But Benotto’s ruling does not offer blanket protection for a journalist’s sources. She stressed that McIntosh’s case was “unique” and his story so important, dealing as it did with the country’s top elected official, that the right to protect his source must prevail.

A promise of confidentiality may still turn out to be a promise a journalist cannot keep. A police raid may be justified or a journalist may be subpoenaed and forced to reveal a source as part of a court case, when refusing to do so could be punished with a fine or jail time.

But when pursuing stories of significant public importance, media outlets have gained a new weapon in the struggle to protect sources.

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Dean Jobb, an assistant professor of journalism at the University of King’s College, is author of Media Law for Canadian Journalists, published by Emond Montgomery Publications.

This article originally appeared in the Spring 2004 edition of Media, the magazine of the Canadian Association of Journalists

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