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The Supreme Court of Canada declared today that journalists do not have a constitutional right to protect their secret sources. The court ruled 8-1 against the National Post and journalist Andrew McIntosh, in a case linked to the "Shawinigate scandal." 
In 2001 McIntosh was investigating a connection between then Prime Minister Jean Chretien and a resort in his home riding, the Grand Mere Inn. After reporting that Chretien had called the Business Development Bank of Canada to promote a loan for the inn he received a brown envelope from his unnamed source. The envelope contained what appeared to be a bank loan for the Grand-Mere Inn, which would allow also allow the Inn to pay a debt to Chretien's holding company, indicating a conflict of interest if Chretien had urged the bank to give them a loan. The document was deemed to be a fake and when the police attempted to investigate the forgery, the newspaper and McIntosh protected their source. The case bumped around Ontario courts, including the Ontario Supreme Court, before heading to the Canadian Supreme Court in May 2009. The Supreme Court of Canada concluded that reporters and newspapers do not have greater rights to freedom of expression than anyone else. A blogger, for example, has the same rights as those in traditional media. At Toronto Life, John Micheal McGrath wonders if this if the first time the Supreme Court has referenced tweeting when he excerpts part of the ruling.
The protection attaching to freedom of expression is not limited to the “traditional media,” but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper.
Those rights do not include the ability to give an absolute assurance of confidentiality. From the National Post.
News gathering techniques, such as the use of confidential sources, "may be important for journalists," noted Justice Ian Binnie, who wrote the majority decision. "But this is not to say that just because they are important that news gathering techniques as such are entrenched in the constitution," wrote Judge Binnie. "The bottom line is that no journalist can give a source a total assurance of confidentiality," he wrote.
Does this mean that all reporters will have to expose their sources? No, it doesn't. There is still some case-by-case leeway for confidential sources, as the Toronto Star points out.
The court said a source’s anonymity could be protected if a media outlet was able to prove the public interest in shielding a source outweighs the interest in investigating a crime. [...] Instead, Justice Ian Binnie, writing for the majority, said that in deciding whether a reporter’s source deserves protection, courts would have to weigh “the seriousness of the offence under investigation,” and just how relevant or valuable the evidence sought really is to an investigation. Those factors would be measured against “the public interest in respecting the journalist’s promise of confidentiality.”
The CBC quotes the B.C. Civil Liberties Association as saying that this decision has major implications for journalist-source relationships.
"We all rely on that relationship to get the news and issues of great national importance, such as this one," said Tim Dickson, who acted as counsel for the BCCLA. "It's because of the willingness of confidential sources to come forward. But they only come forward because they're promised confidentiality."
What do you think? Does this hurt freedom of the press? Do you think it will stop people from going to the press with information?
Contributing Editor Sassymonkey also blogs at Sassymonkey and Sassymonkey Reads.
