Shawinigate - should Canada have "shield" laws?

L'Auberge Grand-Mere

High Court To Hear Post Appeal
Fighting For Right To Protect Sources
Shannon Kari, National Post

Friday, September 26, 2008

TORONTO - The balancing of state powers in a police investigation against the right of a reporter to protect the identity of a confidential source is going to be weighed for the first time by the Supreme Court of Canada.

The High Court agreed yesterday to hear an appeal filed by the National Post in what is expected to be a landmark case in the area of such confidential sources as government whistle-blowers.

The newspaper is appealing a decision by the Ontario Court of Appeal this spring that found there is no "blanket" right to protect sources, in a case that stems from a series of stories in 2001 into the so-called Shawinigate scandal.

The Supreme Court hears only a small percentage of cases where an appeal is filed. While it does not give reasons for its decisions on leave applications, it normally requires an issue to be of national importance for it to agree to hear an appeal.

The Ontario Court of Appeal ruling was criticized by media organizations that suggested it could put a chill on whistle-blowers and hamper the ability of reporters to uncover wrongdoing at all levels of government or state agencies.

Douglas Kelly, editor-in-chief of the National Post, said yesterday the Supreme Court grants leave to appeal only in cases that raise issues of national importance, and he is pleased that the court has recognized that this is such a case.

"The issues of press freedom presented in this case go to the very heart of what we as a newspaper do -- which is to inform the public about the important issues of the day -- and whether we are able to continue to do it. I look forward to a vigorous defence at the Supreme Court of those rights on behalf of the National Post, other Canwest papers and media in general across this country,'' Mr. Kelly said.

In asking the Supreme Court to hear the case, lawyers representing the National Post argued that the Court of Appeal failed to balance the Charter rights of the media against the interests of police.

Instead, the decision contained a "structural bias against press freedom," wrote Marlys Edwardh, one of the newspaper's lawyers in the appeal.

Ms. Edwardh stressed yesterday that this case is not simply about the media and their desire to protect sources.

"While at first blush it looks like a major issue that affects the media, in fact, what is most important about the issue is the public's right to know," she said.

The ability to protect sources is especially vital when a story "is about the detection of wrongdoing by the government or powerful public figures. This affects the overall well-being of the community," Ms. Edwardh said.

The decision by the Supreme Court yesterday is the latest chapter in a seven-year legal dispute connected to the Shawinigate scandal.

A series of National Post stories, written by reporter Andrew McIntosh, detailed potential conflicts of interest involving federal grants and loans awarded in the riding of Jean Chretien, who was then the Prime Minister.

The RCMP believed one of the loan documents received by Mr. McIntosh from a confidential source was forged. Police asked for the original document as well as the envelope in which it was sent, to conduct DNA tests to determine who the source might be, as part of an "uttering a forged document" investigation.

The newspaper refused to turn over the document or the envelope and police obtained a search warrant in July, 2002.

Ontario Superior Court Justice Mary Lou Benotto quashed the search warrant obtained by police in a ruling issued in 2004.

"The eroding of the ability of the press to perform its role in society cannot be outweighed by the Crown's investigation," Judge Benotto said. Confidential sources could "dry up," the judge noted, if reporters are ordered to turn over information that could identify them to police.

The Ontario Ministry of the Attorney-General appealed the decision, arguing that the "public interest" in any police investigation must override the Charter guarantees of freedom of expression.

The Ontario Court of Appeal agreed and ruled that Judge Benotto made legal errors, in a decision released in March of this year.

"We do not diminish the press's important role in uncovering and reporting an alleged wrongdoing. But in our society, it is the police who are charged with the critical role of investigating and prosecuting crime," wrote Justice John Laskin, with Justices Janet Simmons and Eileen Gillese concurring.

More that 30 U. S. states have "shield" laws that protect reporters from having to reveal sources. There are no similar laws in Canada.

The Supreme Court is unlikely to hear arguments in the National Post appeal until the spring.