High stakes: the fight to protect confidential sources

Two Supreme Court of Canada decisions will set a national standard on source protection for the very first time.

By Lesley Pike

Ken Peters knew he was in for trouble when a colleague at the Hamilton Spectator told him a lawyer wanted to speak to him.

It was 2004. His colleague was covering a case between St. Elizabeth’s Nursing Home and the city of Hamilton.

Peters knew exactly what the lawyer wanted.

Ten years before, in 1994, Peters worked the city hall beat in Hamilton. He spoke with confidential sources often, so he didn’t find it unusual when a source gave him a document about St. Elizabeth’s Nursing Home.

“(I knew) he was going to try and find out who the source of my documents was,” Peters said, “When I first heard that, a chill ran down my spine.”

Peters was subpoenaed but refused to reveal the name of his source in court.

The judge charged him with contempt of court. He was fined $31,600.

Two years later, a court of appeal overturned the ruling. The judges in the appeal court said that Peters should have been given time to speak with his source before he was charged with contempt of court. They also said that the judge should have weighed the importance of source protection and the necessity of the source’s identity in the trial more carefully before making his decision.

“After my ruling I feel that we are on safer ground,” Peters said, “but other cases, the case involving the Globe and Mail reporter Daniel Leblanc that’s come up, concerns me a great deal.”

The Supreme Court of Canada will rule on two cases involving source protection for Canadian journalists. The court heard Andrew McIntosh’s case in May and Daniel Leblanc’s case in October.  The outcomes of these two cases will establish, for the first time in Canadian history, a precedent for source protection that will apply to the entire country.

 Ken Peters sought to protect his source in court.
Ken Peters sought to protect his source in court.

Police, RCMP and the courts have argued that allowing journalists to hide the identity of a source can hinder a defendant’s right to a fair trial. Journalists argue that they have a right in the Canadian Charter to freedom of the press, and that confidential sources would not come forward if they didn’t feel they would be protected.

The stakes

Confidential sources provide information that is key to democracy, said Mary Agnes Welch, the president of the Canadian Association of journalists. The information keeps the journalists informed about hidden areas of government and business. This means that journalists can tell the public about everything that is going on in the country.

“The big thing here is, not so much the reporters frankly, but the sources,” said Peter Jacobsen, who acted as an intervener for the Globe and Mail in the McIntosh case.

If people don’t trust promises of confidentially from journalists, then they won’t be willing to come forward. The problem this lack of trust could cause was acknowledged by Senior Justice Benotto in McIntosh’s appeal at the Ontario Supreme Court.

“Their (journalist’s) sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremediated. Misdeeds in the corridors of power, in companies or in government departments would never be known,” Senior Justice Benotto said in her decision.

You only have to look at the two cases in the Supreme Court to see the importance of source protection, said Dean Jobb,  associate professor of journalism at the University of King’s College.

“This is not just a journalist issue; it seems like that on the surface. This is just journalists doing their job and maybe this will be easier for them, or maybe they’ll get a better story, but that story can be the story that unlocks the sponsorship scandal,” said Jobb.

The stories that caused the McIntosh and the Leblanc cases in the Supreme Court were arguably the biggest political stories in the past decade. Neither would have been possible without confidential sources.

Cecil Rosner, the managing editor for CBC Manitoba, goes further.

“It’s hard to think of a major investigative story in the last 20 or 30 years in which confidential sources didn’t play a big role,” Rosner said.

Even the creation of CSIS can be traced to confidential sources, Rosner said. John Sawatsky’s books about the RCMP security service brought the issue to the public’s attention and instigated the inquiries that resulted in the end of the security service and the creation of CSIS.

“Imagine, when he wrote his book no one even knew that the RCMP had a security service (because) it was such a secret organization,” said Rosner, continuing to say that the books would not have been possible without confidential sources from inside the RCMP.

The cases

Since 2002, Andrew McIntosh and the National Post have been fighting a search warrant for a document McIntosh was sent by a confidential source.  The RCMP believe that they can find DNA evidence or fingerprints to reveal the source of the documents, which are believed to be forgeries.

David Paccico, a professor of law at the University of Ottawa, argued that journalistic privilege should not apply to the McIntosh case.

“They’re trying to shield not only information but a piece of evidence,” said Paccico, noting that even lawyers, who have the most privileged relationship with their clients, could not withhold a piece of evidence given to them by a client.

Daniel Leblanc, a Globe and Mail reporter, is involved in a civil case between the federal government and Le Groupe Polygone Éditeurs Inc ., a Quebec advertising company that is involved in the sponsorship scandal. Groupe Polygone wants Leblanc to reveal the name of the source who gave him information about the sponsorship scandal.

Paccico said that this case is a much better example of what a journalistic privilege should protect.

“(An advertising) agency trying to get a name is much less important than it is in a criminal case,” said Paccico

Even though the two cases have many different facets, they do center on the same issue. Both McIntosh and Leblanc are being asked to renege on their promises to their sources.

The Law

“In both cases what you’re doing is you are asking a reporter to violate his or her solemn promise of confidentially and both cases would engage Wigmore (criteria) and both cases would engage section 2 (b) of the charter,” said Jacobsen.

Legally, Canadian journalists have no right to withhold sources in court — except in Ontario.

That province has developed a journalistic privilege which is decided on a case by case basis. Judges use a set of questions called the Wigmore Criteria.

The questions establish that the relationship began with a promise of confidentially, that confidentially is essential to the relationship, that it is a relationship that should be fostered and then weighs whether the benefit of asking the journalist to reveal the information will outweigh the harm done to the relationship with this disclosure.

Peter Jacobsen acted as an intervener for the Globe and Mail in the McIntosh case.
Peter Jacobsen acted as an intervener for the Globe and Mail in the McIntosh case.

The Law in Ontario does not guarantee that journalists will not have to reveal their sources in court; however it does ensure that judges carefully examine the journalist’s argument before making a decision.

The case by case privilege in Ontario is common law. While other provinces would probably follow Ontario’s lead, they are not required to do so.

“The law says that, on a case to case basis, the court will assess claim of privilege and balance the importance of protecting or honouring the promise,” said Jobb, “What they’ll do is they’ll decide if it’s more important to protect the source or to pursue another interest.”

“There’s no other way to do that than a kind of balancing act,” said Paccico, explaining that the courts balance the Charter right of a fair trial with the right of freedom of the press.  While the need for some kind of journalistic privilege is generally accepted, many people don’t believe there should be a blanket privilege in place, including Dean Jobb and Ken Peters.

In some circumstances, revealing the information will be more important to the public than protecting the source, said Jobb. For example, if a source reveals there is going to be a murder, then it’s not in the public interest for the journalist to say, “I’m sorry I’m a journalist, I gave my promise,” said Jobb.  “So that’s an extreme example but that just shows that it’s problematic to say that there’s a blanket immunity or a blanket protection.”

While Jobb is hopeful that the Supreme Court will adopt something like Ontario’s law, he thinks there will be a message in the high court’s decision either way

“If the message to journalists is be careful about your promises, well, that should be the message to them now because anonymous sources can be abused,” said Jobb

Peters also worries about the government involvement in journalism that would come with a blanket protection. If that happened, he said, the government would decide who are journalists under the law.

“I think that it just invites the state into more of what we do (and) I don’t think that that’s necessarily a good thing,” said Peters.

A Murky Minefield

Mary Agnes Welch, president of the Canadian Association of Journalists, believes that Canada should have a blanket privilege for journalists; however, she too believes in exceptions.

“At the CAJ we believe really strongly in the value of confidential sources and the value of protecting those sources at pretty much all costs,” said Welch, “and I say pretty much because I think that there’s some cases where your human morality trumps your professional ethics.”

Welch is not very optimistic about the outcomes of the Leblanc and the McIntosh cases, saying that the two cases might “move the goalpost forward two millimetres” but won’t make the changes her organization believes are necessary.

Then again, if journalists follow the ethics of their profession, it is unlikely that changing the rules will do anything to change the way journalists think.

“There’s a badge of honour among journalists that if you’re ever forced by the courts to reveal your source you just refuse,” said Welch.

There are some cases, however, that are making Welsh hopeful that things are changing.

“The Ken Peters case is actually a really good example where the courts recently did decide to side with the journalist after a bunch of appeals,” said Welch.

Peters himself was happy about the outcome of his case. He felt it marked some changes, but is also not very optimistic about the future of source protection laws in Canada.

“I was really relieved to see that in the judge’s findings,” Peters said, “they took some steps to suggest that journalists do have some protection to use confidential sources and they do have some rights under the charter to use confidential sources.”

Seeing two more cases like his in the Supreme Court however, is making him wonder if things will ever change in Canada.

“Right now journalism is like a murky minefield,” Peters said, “wherever you step, a bomb could go off and you could wind up in court. I would like to see that landscape get safer.”