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Supreme Court of Canada building in Ottawa at night (JIM YOUNG)
Supreme Court of Canada building in Ottawa at night (JIM YOUNG)

Court to rule on 'tidal wave' of press-freedom cases Add to ...

The value that Canadians place on the freedom of the press will be put to the test in five media rights cases that dominate the Supreme Court of Canada docket this year.

The court Thursday granted The Globe and Mail leave to appeal a Quebec case in which Globe reporter Daniel Leblanc was ordered to reveal a confidential source behind his ground-breaking stories about the federal sponsorship scandal.

And Friday the court will determine in a separate case whether journalists have a right to protect confidential sources from police investigators. It will be the most important test of press freedom since a landmark ruling in 1994 known as Dagenais put the onus on those seeking a publication ban to present strong evidence for bypassing court openness.

"This is not only unprecedented, but it is like a tidal wave of fundamentally important legal issues before the Supreme Court," veteran media lawyer Brian Rogers said.

"I don't think there has been a period in history where the court has faced such a number of important cases affecting freedom of expression, journalists and the media."

Two other cases - Cusson and Grant - heard earlier this year, could rewrite the law governing libel and defamation.

The court has yet to release its rulings in those cases, in which media lawyers are pressing to be able to use a defence of "responsible journalism" that would shield publications from massive liability if they have taken every reasonable step to check on the veracity of information.

In a case coming before the court later this year, the judges will consider striking down a virtually automatic ban on publication of information at bail hearings.

Together, the five cases could revolutionize the right of journalists to pursue tough stories without fear of police raids or financial ruin.

In the case that was granted leave Thursday and which will be heard in October, The Globe is challenging a controversial judicial order last summer that permitted advertising firm La Groupe Polygone to question Mr. Leblanc about confidential sources.

The Quebec Superior Court order required 22 people - mostly government workers - to state under oath whether they provided Mr. Leblanc with sensitive information that allowed him to put together his stories about the sponsorship program.

The ruling is part of a legal proceeding in which the federal government is suing Polygone for $35-million in an attempt to recoup sponsorship money paid by the former Liberal government.

Last August, Polygone lawyers were permitted to ask Mr. Leblanc for the dates on which he spoke to his source and whether the person worked for a particular government department. Mr. Leblanc did not answer the questions and The Globe launched an appeal, maintaining that the information would in effect, identify the source, known as Ma Chouette.

"The ability to protect sources is fundamental to democracy, which is why freedom of the press is guaranteed in the Charter of Rights and Freedoms," Globe and Mail editor-in-chief Edward Greenspon said Thursday. "A small civil suit cannot be allowed to trump those fundamental freedom of the press rights, and certainly not without the court first weighing the harm to journalism and democracy very carefully.

"Groupe Polygone has been relentless in the extreme in trying to discover and reveal the identity of Daniel Leblanc's confidential course. Groupe Polygone's lawyers should cease and desist their desperate fishing expedition while the Supreme Court hears the arguments and renders its judgment.

"It would be perverse beyond belief if Daniel Leblanc, the reporter who uncovered what came to be known as the sponsorship scandal, ended up in jail because of it.

"Sources need to have courage to come forward and have confidence they will be protected if we are to ferret out wrongdoing in the public interest. Our duty is to defend those brave sources willing to come forward and speak the truth in the public interest."

Last month, the media were further alarmed when Quebec Superior Court Justice Jean-François de Grandpré banned reporting on talks between Ottawa and Polygone on the basis that privacy trumps the public's right to know.

The judge said that the media has no right to share a tip from a source who wasn't supposed to leak the information. His order forbids reporting on the content and even the existence of talks between Ottawa and Polygone as long as they continue.

The latest order targeted Gesca Ltd., owners of La Presse, but appears to extend to all media because the judge wrote that it applies "to all other persons aware" of his ruling.

A reporter who obtains a leak about private settlement talks "must assume that his source is violating the secrecy of the process," the judge wrote. "He [the journalist]therefore gets the information through the commission of a fault that he has no right to support."

The case that will be argued Friday involves a police attempt to seize a document leaked to National Post reporter Andrew McIntosh in the hope of determining the identity of the source.

Police believe the document received that day in 2001 was forged.

A legal brief by National Post lawyers warns against turning editors into an investigative arm of the police and smothering the sort of enterprising journalism that protects the public good.

The federal government and six provinces will maintain that giving blanket protection to journalists would open the door to abuse.

Had the document Mr. McIntosh received been authentic, it could have unravelled the so-called "Shawinigate" scandal, involving the role that former prime minister Jean Chrétien may have played in loans made to an inn and golf course in his Quebec riding.

The document purported to show that the owner of the golf club owed money to Mr. Chrétien's holding company, and that he planned to repay it with a loan from the Business Development Bank of Canada.

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