Legal battles to identify confidential sources used by investigative reporters Andrew McIntosh and Daniel Leblanc will force the Supreme Court of Canada to address a question that strikes at the heart of press freedom: Where to draw a line between a journalist’s ethical duty to protect sources — sources who may be risking their careers or personal safety to expose corruption and wrongdoing — and society’s need to punish crime and resolve legal disputes. J-Source law editor Dean Jobb explores the issues at stake in a commentary in The Lawyer Weekly.
Do journalists have the right to protect a confidential source? Can a news outlet be sued for libel if it made every effort to get the story right? Does publicizing a crime make it impossible for the suspect to have a fair trial? These issues are on the Supreme Court of Canada's docket this fall in six cases that will reshape media law in Canada. J-Source law section editor Dean Jobb explores what's at stake in a commentary first published in the Winnipeg Free Press.
The court, which was cool to the idea of a blanket immunity for sources, reserved decision on a case that should strike a balance between the Charter guarantee of press freedom and police efforts to investigate crime. Janice Tibbetts of Canwest News Service reports in the National Post.
Ottawa (May 21) – The Supreme Court of Canada will decide whether a Globe and Mail reporter can be forced to reveal his confidential sources in the federal sponsorship scandal.
At the heart of the appeal is a controversial Quebec Superior Court decision last August that allowed lawyers for an advertising firm, La Groupe Polygone, to question reporter Daniel Leblanc about sources who supplied information about the sponsorship program. Read Kirk Makin’s report in the Globe.
The appeal is one of a "tidal wave" of five cases before the Supreme Court – two on when to protect confidential sources, two on revamping libel law and the other on banning publication of bail hearings – that will test the value Canadians place on freedom of the press. Makin reports in the Globe.
Canadian journalists need a shield law to protect their confidential sources and ensure the free flow of information. That's the conclusion of Diana Ginsberg, a graduate student in media law at London's City University who examined how courts in Canada and Britain deal with attempts to expose media sources. While finding no conclusive proof sources will dry up without a shield law, she argues that formal legal protection is better than "the courts simply asserting that it must be relevant and necessary for a journalist to disclose."
Read Ginsberg's thesis, "Moral Imperatives Protected or Punished: Journalists Breaking the Law or Their Word for Their Sources' Protection."
Toronto (March 18, 2008) -- Courts should be extremely cautious about using their contempt powers against journalists who refuse to identify a confidential source, the Ontario Court of Appeal said yesterday in setting aside a trial judge's hefty sanctions against a Hamilton Spectator reporter. Toronto Star legal affairs reporter Tracey Tyler reports.
Read the ruling.
Read the Hamilton Spectator and The Canadian Press reports.
The Canadian Association of Journalists issued a press release welcoming the ruling but calling for a shield law to protect journalists and their sources.
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.
Ontario's highest court has overturned a ruling -- the first of its kind in Canada -- that granted a journalist the right to protect a confidential source. The Feb. 29, 2008 judgment of the province's Court of Appeal authorizes the seizure of a loan document the National Post used as part of its "Shawinigate" investigation in the business dealings of former prime minister Jean Chrétien. The RCMP can now analyze the document, which the Business Development Bank claims is a forgery, to determine who leaked it. The Post and its former reporter Andrew McIntosh argued the tests could reveal the identity of a confidential source but the court said the Charter guarantee of press freedom does not make journalists "immune" to searches or give them "an automatic right to protect the confidentiality of their sources" In this case, the need to ascertain the truth through a police investigation outweighed the public interest in protecting the newspaper's source.
See The Lawyers Weekly report on the ruling.
The Post will seek leave to appeal the ruling to the Supreme Court of Canada. "We believe that, except in the most extraordinary circumstances, reporters must be permitted to honour the promises of confidentiality they provide their sources," Editor-in-Chief Douglas Kelly said in a March 25 press release. "Even scattered exceptions to such a rule would chill informants, and thereby cause investigative reporting to become a dead letter."
Reaction: The president of the Canadian Association of Journalists, Mary Agnes Welch, issued a press release criticizing the ruling as "regressive" and "a major setback for press freedom and the public's right to know." But Ryerson University journalism professor John Miller, in a commentary in The Globe and Mail, argues the court struck the proper balance between press freedom and crime detection and journalists should "be wary about giving sources blanket, unconditional promises to protect their identities."
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