CyberSmokeBlog.blogspot.com: A small civil suit cannot be allowed to trump the fundamental freedom of the Press!

Press-ban appeal heads to top court - Supreme Court of Canada to weigh Quebec judicial order requiring Globe and Mail reporter to reveal sources in federal sponsorship scandal

Kirk Makin
The Globe and Mail

May. 21, 2009

The Supreme Court of Canada has agreed to hear an appeal of a controversial judicial order requiring a Globe and Mail reporter to reveal his sources in the federal sponsorship scandal.

The decision — made this morning by Mr. Justice Ian Binnie, Mr. Justice Morris Fish and Madam Justice Louise Charron — was released without comment.

The Court said that the case will be heard on an expedited basis, on October 21.

At the heart of the appeal is a Quebec Superior Court decision last August that allowed lawyers for an advertising firm, La Groupe Polygone, to question Globe and Mail reporter Daniel Leblanc about confidential sources who supplied him information about the sponsorship program.

The court ordered 22 people — mostly government workers — to state under oath whether they helped Mr. Leblanc by providing him with sensitive information that allowed him to put together his ground-breaking expose of the program.

“The ability to protect sources is fundamental to democracy, which is why freedom of the press is guaranteed in the Charter,” The Globe's editor-in-chief, Edward Greenspon, said after the top court decided to hear the case. “A small civil suit cannot be allowed to trump those fundamental freedom of the press rights, and certainly not without the courts first weighing the harm to journalism and democracy very carefully.”

The ruling is part of a tangled legal proceeding where the federal government is suing Polygone for $35-million, in an attempt to recoup sponsorship money paid by the former Liberal government.

“Groupe Polygone has been relentless in the extreme in trying to discover and reveal the identity of Daniel's Leblanc's confidential source,” Mr. Greenspon said. “Groupe Polygone's lawyers should cease and desist their desperate fishing expedition while the Supreme Court hears the arguments and renders its judgment.”

He added: “It would be perverse beyond belief if Daniel Leblanc, the reporter who uncovered what came to be known as the sponsorship scandal, ended up in jail because of it.

“Sources need to have courage to come forward and have confidence they will be protected if we are to ferret out wrongdoing in the public interest. Our duty is to defend those brave sources willing to come forward and speak the truth in the public interest.”

The newspaper tried to halt the court proceedings last August after Mr. Leblanc was pressed to reveal his sources. However, the Quebec Court of Appeal said that it lacked jurisdiction to hear an appeal of the decision.

“In order for this Court to consider and resolve the important issues raised by these proceedings, it was deemed essential to attack the 26 August 2008 judgment by way of direct appeal to this Court,” a Globe brief in support of the leave application said.

“This Court has recognized time and time again that freedom of the press is a fundamental pillar of a free and democratic society, serving to ensure ... that public institutions function transparently and that citizens are well-informed on matters affecting their lives and well-being.”

During its cross-examination of Mr. Leblanc last August, Polygone was permitted to ask him seven questions that delved straight into the identity of his sources.

They included the dates when he spoke to his source, whether the source was on a list of witnesses the trial judge had allowed to be examined out of court, and whether the confidential source worked for a particular government department.

Coincidentally, the leave decision came just a day before the Court hears another major appeal involving the confidentiality of journalistic sources.

The Globe's brief in the Polygone case argued that confidential sources are indispensable if the news media is to break stories of social and political important.

“If a confidential source believes that, notwithstanding any assurance from the journalist, there is a reasonable risk that its identity will be publicly disclosed, the source will be deterred from coming forward. The end result is that many important stories would simply go untold,” it said.

In another move that alarmed the news media, Quebec Superior Court Justice Jean-François de Grandpré clamped a ban last month on media reporting of talks between Ottawa and Polygone on the basis that privacy trumps the public's right to know.

The ban is seen within the press as a serious threat to the practice of investigative journalism. It would place an informational clamp over reporting in nearly any sphere, turning the press into purveyors of official information.

The judge said that the press has no right to share a tip obtained from a source who wasn't supposed to leak the information. His order forbids reporting on the content and even the existence of talks between Ottawa and Polygone as long as the talks continue.

Last fall, Judge de Grandpré imposed a separate publication ban against Mr. Leblanc, after Mr. Leblanc disclosed elements of the confidential talks.

The latest order targeted Gesca Ltd., owners of La Presse, but appears to extend to all media because the judge wrote that it applies “to all other persons aware” of his ruling.

Judge de Grandpre said that Polygone and Ottawa were trying to reach a deal and both sides wanted the talks to remain confidential. “Unfortunately,” wrote the judge, an unidentified government source fed information about the negotiations to a La Presse journalist, who published an article on April 1.

“It's a debate between freedom of expression and the protection of privacy, two rights protected by the Quebec Charter of Rights,” Judge de Grandpre said. “The court comes down in favour of the protection of privacy and the confidentiality of the settlement process.”

A reporter who obtains a leak about private settlement talks “must assume that his source is violating the secrecy of the process,” wrote the judge. “He [the journalist] therefore gets the information through the commission of a fault that he has no right to support.”

Christian Leblanc, the lawyer representing La Presse, said he was disappointed with the ruling and will consider an appeal. “We believe this kind of information is in the public interest and deserves to be broadcast and published,” he said of the talks between Ottawa and Polygone.

In recognition of his work and his diligence in protecting the confidentiality of his sources, Mr. Leblanc recently received the Press Freedom Award, from the Canadian Committee for World Press Freedom.