The Supreme Court of Canada demonstrated respect and understanding on Friday for news reporting that depends on confidential sources. It set an appropriately high bar for judges who may wish to order journalists to reveal those sources, in civil or criminal cases. The court has in effect given the organized news media the tools to do investigative journalism in the public interest.
The case before the court involves The Globe and Mail and its reporter Daniel Leblanc, and a story that may represent the single most important use of a confidential source in recent Canadian journalism. It was Mr. Leblanc's reporting that helped bring the federal sponsorship scandal into the public eye. That scandal was a factor in the 2006 election in which the Liberal Party was turned out of office.
It would surprise many Canadians that Mr. Leblanc was later ordered by a Quebec court to divulge information that could reveal his source. When Groupe Polygone Éditeurs inc., a company being sued by the federal government, sought to defend itself by seeking out Mr. Leblanc's source, a Superior Court judge refused to recognize the existence of a journalist-source privilege. The public interest in protecting Mr. Leblanc's reporting cannot be squared with a judicially authorized search for his source.
A second broad threat to the news media's ability to do their job grew out of this case. When Groupe Polygone and the government were negotiating a settlement, Mr. Leblanc obtained information from a confidential source on the details, and reported them. Groupe Polygone complained the negotiations were endangered; a judge then banned Mr. Leblanc from further reporting on those negotiations. The judge said Mr. Leblanc's source had no right to give him that information, and he therefore had no right to benefit by reporting it.
If that logic were to spread, investigative reporting would stand no chance. All the authorized news fit to print - this might become the news media's motto. "The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples," Mr. Justice Louis LeBel said for a unanimous Supreme Court.
In an era in which every blogger is a self-proclaimed journalist, the court clearly puts great stock in the organized media's ability to probe behind the closed doors of powerful institutions. "Bearing in mind the high societal interest in investigative journalism, it might be that he [Mr. Leblanc]could only be compelled to speak if his response was vital to the integrity of the administration of justice." That is a high bar, indeed. The protection of sources should never be absolute, but the Quebec Superior Court will have to give it full consideration, in light of the important public interest at stake, when it ultimately decides the matter.
The ruling should be taken as an affirmation of what the news media do at their best. The public should expect that all such media make full use of the protections they have been given.
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