Civil Litigation

Decision may have ‘cooling effect’ on confidential sources

By Mia Clarke, Associate Editor

Journalists may find it more difficult to get information from confidential sources following a recent court ruling in Ontario, says Fredericton litigator Matthew Pearn.

In March, Ontario’s top court ordered a Vice Media reporter to give the RCMP his background material on an accused terrorist. Vice Media fought against the production order, arguing that sources would be reluctant to come forward.

“If the general public thinks the police can collect whatever information a reporter gathers, they’re going to be less trusting and more hostile to journalists,” says Pearn, an associate with Foster & Company and a former CBC radio journalist.

"Now you could be viewed as an agent of law enforcement, collecting evidence of a potential crime."

Pearn tells AdvocateDaily.com that the Vice Media case demonstrates that journalists “can’t count on being able to protect sources unless they’re prepared to go to jail.”

In a case that pitted freedom of the press against the ability of police to investigate crimes, the Ontario Court of Appeal said it found no errors in a ruling against the Canadian media outlet. The appeal court agreed with the lower court that there is a strong public interest in allowing journalists to investigate allegations of serious crimes. In its decision, the court noted how Superior Court Justice Ian MacDonnell had been concerned about a potential “chilling effect.”

“(Justice MacDonnell) was clearly alive to the concerns about the negative impact of requiring the media to produce material for the police,” the appeal court wrote. “He implicitly addressed that concern as it existed on the facts of this case by identifying factors that tended to significantly reduce the potential ‘chilling effect.’”

According to a story in the Globe and Mail, Vice Media is considering leave to appeal the case to the Supreme Court of Canada.

The Globe reported that the materials in question relate to three stories the Vice Media reporter wrote in 2014 about a Calgary man charged in absentia with various terrorism-related offences. The articles were largely based on conversations the reporter had with the source via an online instant messaging app.

RCMP investigators want access to the screen captures of those chats.

While the suspected terrorist may not be a sympathetic character, Pearn says the same rules would apply to a whistleblower trying to expose wrongdoing. Some media organizations have responded in recent years by setting up anonymous drop boxes for information and tips, but Pearn is worried about losing the relationship of trust that journalists establish with their sources.

“If I’m a reporter, I can’t cultivate a source with an anonymous tipster,” says Pearn. “Without cultivating that source, I can’t be confident in the information provided and sometimes it becomes harder to confirm through an independent second source,” he says.

“That’s a problem,” Pearn says. “Whistleblowing protects society against government abuse or corporate malfeasance. Without those carefully cultivated relationships between reporter and source, journalists may be reluctant to act on anonymous tips and have difficulty confirming the validity of information.”

Pearn says it’s time for the federal government to step in and legislate protection for whistleblowers, which could also serve to protect the relationship between journalists and their sources.

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