Civil Litigation

Court upholds journalists’ right to protect sources

By Rob Lamberti, AdvocateDaily.com Contributor

A recent Quebec ruling upholding a journalist's right to protect a source’s identity was the first successful test of Canada's new Journalistic Sources Protection Act, and that's good for democracy, Fredericton litigator Matthew Pearn tells AdvocateDaily.com.

"Our governments are only as transparent and accountable as they are today because of the hard work of journalists,” says Pearn, an associate with Foster & Company.

“Sometimes, journalists need confidential sources to guide them towards hidden problems in how we are governed, and that makes these protections for confidential sources good for democracy."

Pearn cites the case of two journalists who were exempted from revealing to a court their sources in stories dealing with leaked information from Quebec's anti-corruption unit, Unité permanente anticorruption, or UPAC.

The defence argued the case should be dismissed as leaks about the police investigation denied the accused a fair trial in a case involving six people, including two former provincial ministers, facing a litany of charges such as the corruption of public servants.

The journalists fended off the attempt to expose their source or sources with the Act, which was introduced in the Senate as Bill S-231 and was unanimously adopted by Parliament in October.

“The parties did not demonstrate that the administration of justice supersedes the public’s interest in preserving journalistic sources,” Quebec Court Judge André Perreault is quoted as saying in the Montreal Gazette.

A lawyer representing one of six defendants told the court that he intended to review the ruling to determine whether he would appeal. The Gazette noted he had 10 days from the ruling date to decide.

Pearn, who wasn't involved in the case and speaks generally, says the ruling is important for journalists because it demonstrates that judges are willing to enforce the Act "as opposed to working their way around it, especially when individuals' liberties" are at play.

He said the most difficult test for source privilege is when it conflicts with a person facing a criminal charge. And in this case, the judge used the Act to defend the journalists' right to maintain the anonymity of their source or sources.

"Giving a dead-end to a defence strategy with this ruling, Judge Perreault has shown that the new Act has teeth," Pearn says. "I imagine there are many journalists who take comfort in it — probably many whistleblowers, too."

He believes the ruling and the Act will just as importantly provide protection to smaller news publications and outlets focusing on relatively smaller issues that are important to specific communities.

"Sometimes the things people feel the need to share with journalists aren't broad disclosures but are smaller-scale issues that they wouldn't risk their livelihoods or reputations over, but they feel it should be brought into the public discussion," Pearn says.

Concern about protecting sources may arise in a criminal investigation where detectives are trying to create "a sphere of privacy" to conduct that probe, he says.

"But even in that context, it's interesting this was upheld," Pearn says. "The public's interest in protecting a source superseded the interest of defence counsel in advancing a strategy to defend their clients."

Indeed, Perreault noted that before the Journalistic Sources Protection Act, the law placed the burden on journalists to prove that their sources' confidentiality was essential. He said in this particular case, freedom of the press was at stake, iPolitics reports.

The new legislation doesn't eliminate the need for journalists to apply the standards of responsible communication as outlined by the Supreme Court of Canada in 2009, Pearn says.

He says the existence of the Act shows there is great public interest in protecting the sphere of privacy involving journalists and their sources, and that judges should respect that relationship when they rule.

But he says it's early in the life of the Act.

"It's hard to say how a court of appeal will treat it, but it's a positive development for anyone who sees it as important to afflict the comfortable and comfort the afflicted," Pearn says.

"To understand that a journalist won't have to roll on you" should offer some comfort to a source that wants to establish a relationship with a journalist that can only exist within that sphere of privacy.

At the core of that sphere is the trust that develops between the source and the journalist. While there may be protection, "It doesn't mean that the source, in turn, has a tortious action against the journalist for having breached the guarantee that was offered — that promise of anonymity,” says Pearn.

"That kind of relationship gives the journalist something to build on when it comes to trust," he says. "But trust is at the heart of it.

"In this day and age, it’s easy to figure out whether you, as a source, know a journalist through social media. People wanting to know the name of the source can come sniffing for you. Even if they can't prove it’s you, they may have a strong suspicion from the start."

While the definition of a journalist in the Act is not as broadly defined by the court in the responsible communications ruling, Pearn says the legislation offers protection to the "bricks-and-mortar-establishment journalist who works in traditional media and those tend to be the institutions that draw the big fish when it comes to disclosures."

However, he wonders whether the courts would afford the same protections to a blogger trying to protect a source.

The publishing of the story and the protection of the source are the two reasons behind bringing a journalist to court, Pearn says.

"In one case, you're being asked whether it was appropriate to carry out the reporting exercise, and in another, you're being asked to give up your source because someone suspects the story is accurate or has information they are curious about and wants to determine where it came from," he says.

Pearn says the legislation, especially following this ruling, offers some "comfort" to sources when it comes to protecting their anonymity and a journalist has "less at stake than in the past if push came to shove."

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