Supreme Court ruling makes it open season on investigative journalism
Judgment makes it impossible to have the 'unfettered media' it cites
Vancouver Sun – May 8, 2010
By Ian Mulgrew

The Supreme Court of Canada declared open season on investigative journalism Friday with a ruling that makes it almost impossible for the media to protect a confidential source.

In a decision that paid lip service to free speech, the high court ordered the National Post and one of its reporters to disclose the name of a source and surrender a document.

The 8-1 majority decision, delivered by Justice Ian Binnie, was long on fine-sounding rhetoric about the value of a robust and unfettered media but it proved empty.

The court described my colleagues and me as "a heterogeneous and ill-defined group" who don't deserve constitutional immunity because that would "blow a giant hole in law enforcement and other constitutionally recognized values such a privacy."

Binnie didn't even think the Post and its reporter, Andrew McIntosh, deserved notice that the cops were applying for a warrant so they could oppose it.

On a case-to-case basis, however, he maintained that judges still may allow the media to shield a source if they meet a four-part test that establishes the public interest in protecting anonymity outweighs a criminal prosecution or other societal interests.

In a trenchant dissent, Justice Rosalie Abella cut through her colleagues' crap.

There was "no contest," she said, if a true balancing of rights was carried out between the damage caused by identifying the source and any useful information that might come to light.

She said the police were seeking evidence of "only questionable assistance in connection with a crime of moderate seriousness."

Abella said the document would be of only "marginal" benefit to the forgery investigation and the only purpose for learning the confidential source's identity was to discover who had created this awkward controversy.

"In my view, the harm caused by the possible disclosure of the identity of the confidential source in this case is far weightier than any benefit to the investigation of the crime," she wrote.

"Moreover, unlike the majority, I am of the view that the National Post ought to have received notice of the application for a search warrant."

This case is about "Shawinigate" – the unfounded accusation that former prime minister Jean Chretien was embroiled in a serious financial conflict of interest over an investment in the Auberge Grand-Mere in his riding.

In April 2001, an anonymous source provided McIntosh with a $615,000 Business Development Bank of Canada loan authorization that appeared to confirm the allegations.

But the bank and the prime minister's office said it was a forgery and police launched an investigation.

They attempted to obtain the document from the Post for forensic analysis and to identify the source. That precipitated the court battle.

But let's cut to the chase.

If a case involving the prime minister and allegations of misconduct doesn't meet the criteria for protecting an anonymous source, what scandal would?

In the United States, some 36 states have enacted "shield laws" protecting the relationship between a news reporter and his or her source.

All but one of the remaining states judicially recognize journalist-source privilege.

While the scope of the protection varies, most of these laws offer some form of qualified privilege to reporters unless those seeking disclosure can establish that the information is relevant, that it is unavailable through other sources and that there is a compelling public interest justifying disclosure.

A bill to provide such protection at the American federal level was passed by the House of Representatives in March 2009 and is before the Senate.

Similar legislative protection exists in the United Kingdom, Australia, Austria, France, Germany, Japan, Norway and Sweden.

Three decades ago the British House of Commons succinctly declared: "The reason is because, if they were compelled to disclose their sources, [the media] would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed.... Misdeeds in the corridors of power, in companies or in government departments would never be known. Investigative journalism has proved itself as a valuable adjunct of the freedom of the press."

But not in Canada where the media are condescendingly labelled "a heterogeneous and ill-defined group."

This is not a judgment, it's an insult to everyone in Canada who believes democracy depends on free speech and its handmaid, investigative journalism.