OTTAWA (Reuters) - Reporters in Canada have no constitutional right to offer their sources blanket confidentiality, the country’s Supreme Court said in a landmark ruling on Friday.
In the first pronouncement of its kind, the court ruled by an 8-1 majority that journalists could offer sources protection. But if prosecutors subsequently demanded to know who those sources were, courts would decide the merits of confidentiality promises on a case-by-case basis.
“No journalist can give a secret source an absolute assurance of confidentiality,” the judges said.
The ruling is a defeat for the National Post newspaper, which had demanded the quashing of a police search warrant for a document and an envelope one of the paper’s reporters had been given by a confidential source in 2001.
The Canadian Association of Journalists said the ruling was “a significant blow to every journalist’s ability to protect whistle-blowers”.
The document purported to show former prime minister Jean Chretien had leaned on a federal bank to approve a loan to an ailing hotel which owed his family money. Chretien and his lawyers said the document was forged and complained to police.
The judges said promises to keep sources secret had to be balanced against other important public interests, including the investigation of a serious crime.
“In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence,” they said.
The Post had argued that in cases where there was a dispute over whether a source could remain secret, the onus should be on prosecutors to show why a criminal probe was more important than a promise of confidentiality. The court disagreed.
They did make clear that in some situations the public interest in protecting the secret source from disclosure outweighed other competing public interests.
“In those circumstances the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised,” it said.
Police wanted the document and the envelope to look for evidence such as fingerprints or DNA that could help identify the source.
The National Post, which estimates it has run up a legal bill of C$850,000 ($820,000) on the case so far, said the battle had been worth fighting.
“It (the ruling) establishes the framework and some conditions. The onus issue is a point of disappointment but I think we achieved a lot here,” editor-in-chief Douglas Kelly told Reuters by phone from Toronto.
Kelly said the paper’s lawyers would consult with prosecutors as to whether they still wanted the document. The reporter in question no longer works for the paper.
(The case is National Post, Matthew Fraser and Andrew McIntosh v Her Majesty the Queen, Supreme Court of Canada, no 32601)
Reporting by David Ljunggren; editing by Janet Guttsman