The judicial inquiry into former prime minister Brian Mulroney's relationship with the lobbyist Karlheinz Schreiber is a reminder of why confidential sources used by the news media are so important; they help separate truth from half-truth and omissions. But the Canadian media's reliance on these sources has been under regular attack from some judges who seem unimpressed by - to take one example of what confidential sources helped disclose - Watergate. Or the revelations about abuses at Abu Ghraib prison, to mention another.
Yesterday, the Supreme Court of Canada agreed to hear The Globe's appeal of a case in which a Quebec judge has been trying to uncover the source of stories by Globe reporter Daniel Leblanc, who helped reveal the sponsorship scandal involving the Liberal government of Jean Chrétien. It's a chance for the Supreme Court to do for the media's use of confidential sources what it did in 1994 for the media's right to report on what goes on in the nation's courtrooms: drag the discussion kicking and screaming into the constitutional era that began in 1982.
The public interest in protecting confidential sources rests not merely on the importance of revealing what went on between Mr. Mulroney and Mr. Schreiber, or at the Watergate Hotel or a jail in Baghdad. It is based on a society's ability to chase down truth. This is not a job left to governments in free societies. They cannot and should not be trusted to do so.
Mr. Leblanc's news reports were surely in the public interest - a judicial inquiry was held as a result, and the course of a federal election may have been turned. Yet a judge has allowed lawyers to question more than 20 civil servants and ad-agency employees as to whether they had ever spoken to Mr. Leblanc about the sponsorship scandal. It is impossible for a free society to square the public interest in the story with the judicially authorized search for its source.
Some judges have said that, in cases of alleged wrongdoing, the media should stand back and let the police do the investigative work. A Quebec small-claims-court judge made that point this month after a news reporter went undercover among the Raelian sect. Similarly, the Ontario Court of Appeal, in a case involving a former National Post reporter's protection of a confidential source, said, snarkily, "It is not necessarily better to write about crime than to do something about it." But writing about crime is doing something about it - bringing it to light - and the Supreme Court, which is hearing the National Post case this week, should make that point.
How would news reporters do their work if the principle set out in the Leblanc case stands? The judge said that insiders who violate the secrecy of settlement talks (in this case, in Ottawa's lawsuit against Groupe Polygone Inc.) commit "a fault," and journalists have "no right to support" that fault. But the Mulroney-Schreiber story started when the CBC's the fifth estate received a document, presumably owing to someone's "fault," detailing a Schreiber bank account named "Britan."
If the legal system chases down the confidential source used by Mr. Leblanc, what happens to the public interest the next time a whistleblower wishes to speak? What scandal will no one know about when the confidential sources choose to stay silent?