Judge Crane's ruling was extraordinary for its lack of knowledge and perspective on media practices and its narrowly legalistic approach. It represented a step backward in what has recently been some progress in Canadian courts toward treating secrecy of source with the respect it deserves.
Secret sources are vital. Without the ability to protect the identity of sources, journalists would be severely handicapped in performing one of their essential functions.
This becomes clearer if one considers all journalism as falling into two categories. The first is "official," and most of the information carried by the media -- from major political news to weather reports -- belongs to this group. Almost all of this service information comes from official sources. And when it comes to political information, almost all is biased or incomplete.
The second category is "unofficial" journalism. Although it is much smaller by volume than official information, it is far more significant. It usually contains key facts that governments or corporations try to conceal for self-serving reasons. This information, by definition, can only come from unofficial or secret sources.
The media rightly place a high value on this kind of exclusive information, and they give it prominence. Journalists who earn a reputation for being adept at uncovering this type of information are the respected leaders in their field; they expose corruption in government and business and alter the course of affairs for the better.
It is not an exaggeration to say that the measure of an effective democracy is the amount of unofficial information carried by its media. And the growing trend toward enacting "whistle blower" legislation to protect the sources who provide this information is an indication of its importance.
Virtually none of this essential context was evident in Judge Crane's decision last week. Although he made a passing reference to "the Charter values of freedom of expression and of the press," society, in his view, "is about limits and citizenship is about subjecting ourselves to the law." From this perspective, journalists who refuse to identify sources in court are setting themselves above the law. They are placing themselves in a situation that "seems to be unique -- of not being bound by the law." In other words, they are thumbing their noses at the law, and this contempt deserves to be punished.
Why would journalists place themselves in such jeopardy? According to Judge Crane, they are the pawns of media owners intent on selling "the news." These owners "employ journalists to search out newsworthy information using as one means, the undertaking of confidentiality to sources."
After hearing from a few journalists and media experts, Judge Crane concluded that "any journalist that has revealed a source will never again be employed in a newsroom." He blames the "oppressive nature of this culture" for the predicament of Mr. Peters.
This is a truly bizarre distortion of what occurs in most newsrooms.
To begin with, the obvious need to use secret sources is apparent to all journalists, not something that employers force them to do. It's an essential element in obtaining the kind of unofficial information that enables journalists to produce their most meaningful work.
Far from insisting on the use of secret sources, publishers, editors and news directors try to ensure that their reporters don't lightly give undertakings of confidentiality. In fact, they won't allow a reporter to do this without the express consent of a senior editor to whom the reporter has confided the identity of his or her source. News organizations do this for their own protection, as the Spectator did in Mr. Peters's case.
This common practice engages the news organization intimately in all the risks involved in promising confidentiality to a source. Far from being an example of an "oppressive culture" in the newsroom, it illustrates, in our best media, a co-operative effort to produce truly significant information.
Virtually all journalists are aware of the dangers involved in promising confidentiality; they use this method only as a last resort.
Judge Crane had his own solution. He suggested that journalists should promise confidentiality "to the full extent of the law." But this is no protection at all. Using such a meaningless guarantee would quickly discourage all prospective secret sources. Much as this might delight our politicians, bureaucrats and some of our judges, it would do nothing to contribute to the health of our democracy.
That end will be served by judges who give full weight to the Charter guarantees of free expression and a free press and who respect the motives of most journalists when they cautiously use secrecy of source in the best interests of society.
Peter Desbarats is a former dean of journalism at the University of Western Ontario and a past holder of the chair of communications ethics at Ryerson University.