'Long-term harm' if Post must reveal source: lawyer
Newspaper fights RCMP in freedom of press case
Adrian Humphreys
National Post
Tuesday, September 09, 2003
(Marlys) Edwardh: (Photo ran in all editions except Toronto.)
nationalpost.com
TORONTO - Canadian courts need to protect the sensitive relationship between a journalist and a confidential source to ensure all reporters can act as watchdogs over issues of public interest, an Ontario Court heard yesterday in a landmark press freedom case.
"The direct and long-term harm" caused by forcing the editor-in-chief of the National Post to turn over leaked documents mailed by a source -- who could be identified by the RCMP through DNA testing of the licked stamp on the envelope -- would hamper journalists from exposing issues of public importance, said Marlys Edwardh, representing the Post.
"The ability of journalists [to use confidential sources] is essential to the work of newsgathering ... The foundation of these relationships is based on confidentiality and built on trust.
"Constitutional protection of that relationship is necessary for free expression and for this kind of free speech in a democracy," she said.
Madame Justice Mary Lou Benotto of the Ontario Superior Court heard the opening day of oral arguments in a case that pits the rights of police to conduct investigations and the freedom of the news media to operate free from government interference.
The hearings stem from a bid by the Post to have the courts quash an unprecedented RCMP search warrant and assistance order that requires the newspaper's editor to locate and surrender to police a leaked document and the envelope it arrived in.
The document purports to be from the Business Development Bank of Canada and concerns a $615,000 loan to the Grand-Mère Inn. It suggests the inn owed a debt of $23,040 to Jean Chrétien's family holding company at the same time the Prime Minister was lobbying the bank to approve the loan, and that the loan would be used in part to pay off that debt.
The bank and lawyers for Mr. Chrétien said the leaked document is a forgery and the inn never owed money to the company.
RCMP investigators hope to glean the identity of the source who forwarded the document to Andrew McIntosh, an investigative reporter with the Post who has written extensively about the actions of the Prime Minister and his ministers.
The Post declined to co-operate with the RCMP, saying surrendering its documents would serve only to identify a reliable confidential source who received them from a third party and passed them on in good faith.
CBC News and The Globe and Mail have joined the Post in fighting the order because of the chilling effect the assistance order could have on investigative journalism. The news organizations argue their respective confidential sources, which are essential to the practice of public-service investigative journalism, will dry up if citizens know the police can force newsrooms to surrender sensitive documents.
Ms. Edwardh said several members of Parliament also received the document and yet assistance orders against them, similar to those sought by Corporal Roland Gallant against the Post, were not requested.
Ms. Edwardh compared a journalist's confidential source to that of a confidential police informant -- it is the identity of the person, not so much the content of the interaction, that needs protecting. That differs from the relationship between lawyers and their clients, she said, where it is the content of the communication that is at issue.
The Supreme Court of Canada recognized in 2001 that the relationship between a journalist and a confidential source may be protected under the law of privilege on a case-by-case basis.
"Given the importance of the interests that would be promoted by maintaining the promise [by Mr. McIntosh] and harmed by disclosure, it is submitted that only compelling countervailing interests can justify disclosure," says a summary of the Post's case presented in court. "That is to say, disclosure would be justified only in exceptional circumstances where vital and serious public or individual interests are at stake and disclosure will advance the inquiry in a material respect.
"No Canadian court has had to define the circumstances under which disclosure of a confidential source by way of the search of a media organization would be warranted," the document says.
The case continues today. The government is expected to present its arguments tomorrow.
ahumphreys@nationalpost.com
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