News  Supreme Court defend journalists sources

Critics say ruling doesn't go far enough

Last Friday, the Supreme Court of Canada issued a ruling clarifying the legal procedure surrounding a journalist’s right to protect confidential sources. The case involves Daniel Leblanc, the Globe and Mail journalist who broke the “sponsorship scandal” in 2004, and Le Groupe Polygone Éditeurs Inc., an advertising agency implicated in the scandal, which was demanding that Leblanc reveal his sources.

Leblanc wrote several articles and a book on the scandal, which relied heavily on information provided by an anonymous source, known only as “Ma Chouette.” As one of the companies implicated in the scandal that saw one-hundred million dollars awarded by the federal government to Liberal-affiliated sponsors, Polygone was hit with a $35-million federal lawsuit in 2005.

Polygone, which received forty million dollars in government funds during the period of the scandal, asked Leblanc to testify to the Quebec Superior Court in order to expose the identity of Ma Chouette in hopes that the source would have information that could help Polygone with their lawsuit.

“We were appealing the Superior Court decision in which the judge asked me to answer questions on my source,” Leblanc told The Daily.

“We were objecting to the kind of fishing expedition in which they were…asking questions to 22 people to see if they were one of my sources,” he said. “That’s how [my case] ended up in [Supreme] court.”

Before being given standing in the Supreme Court, the case passed through the Quebec Superior Court, where Justice Louis-Phillipe Grandpré ruled that Leblanc would have to answer questions regarding his source. Had it stood, the ruling would have been a “catastrophe for investigative journalism,” said Brian Myles, president of the Fédération professionelle des journaliste du Québec (FPJQ).

Leblanc claimed journalists have a “class privilege” that allows him to protect Ma Chouette.

“The courts have recognized this kind of privilege can exist,” confirmed Dean Jobb, professor of legal journalism at King’s College in Halifax. However, “It still hasn’t said definitively when [the privilege] does exist,” Jobb added.

Jobb went on to express his disappointment in the Friday ruling, saying the Supreme Court did not really answer the fundamental question of whether or not Leblanc’s source could be protected.

Myles explained the limits of the Supreme Court’s ruling: “It’s on court-by-court basis that the court will decide if a source is granted protection or not.”

“[W]e don’t see it as a major victory. It’s a confirmation of the status quo for reporters. The threshold is high for reporters to be forced to reveal their sources, but it’s still a possibility.”

FPJQ was listed as an intervener in Leblanc’s Supreme Court case. Interveners become involved in court cases at the discretion of the judge, because he or she thinks a third party can add something to the case. Other interveners in Leblanc’s case included Astral Media, La Presse, Médias Transcontinental Inc., Groupe TVA, and CBC.

Myles explained FPJQ’s motivation to become involved in the case.

“It was the clearest case where you could argue that protection of sources was essential to the conduct of the investigative story of Daniel Leblanc,” he said.

“If you cannot protect your sources in something like the sponsorship scandal, you cannot protect them anywhere else,” Myles continued.

Leblanc’s case will now be heard in the Quebec Superior Court again, where the criteria established by the Supreme Court on Friday will be in place throughout the proceedings.

“After all of this, really the case goes to square one but with some very good rules and some very good, very strong tests that one hopes will protect Leblanc as he goes forward,” Jobb noted.

Despite his charge that the Supreme Court ruling did not go to the heart of the issue in the case between Leblanc and Polygone, Myles acknowledged that the ruling was related to the bigger issues surrounding the case.

“The Supreme Court went as far as it could given the state of the affairs in reporting today where anybody can enter and exit the business,” Myles stated, pointing to the blurry definition of what a journalist or reporter is.

“Everybody who claims so, can pretend to be a reporter. There’s no clear-cut border between who is a reporter and who’s not,” Myles explained.

From Leblanc’s perspective, the Friday ruling will at least clarify the rules for journalists dealing with sources.

“It makes it clearer for journalists when sources ask for it to be protected that you can say exactly what the rules are and what the limits are,” Leblanc explained. “You can never offer blanket-protection, but you can at least say, ‘Here is the process.’”