Mixed Result in Supreme Court Source Protection case Holds Some Good News

Friday, May 7, 2010
Toronto, May 7 2010 - Canadian Journalists for Free Expression (CJFE) views today's Supreme Court of Canada decision in the protection of sources case as a mixed result with the good news outweighing the bad. The court case involved the National Post and former Post reporter Andrew McIntosh and revolved around a search warrant issued almost ten years ago to McIntosh demanding that he turn over to the police an envelope he received from a confidential source. McIntosh refused, believing that he would not be able to protect the confidentiality of his source in doing so, and so the case went to court. The document contained in the envelope is now believed to have been a forgery and is considered to be of some significance as it appeared to implicate former Prime Minister Jean Chretien in a financial conflict of interest. The first ruling was a victory for the Post and McIntosh, but was later reversed by the Court of Appeal. The Supreme Court's decision today gave some new protection to the journalists/source relationship, but still maintains that the onus remains on the media to prove that the injury would be greater than the benefit involved in disclosure. CJFE along with 10 other free expression and media organizations had intervened in the case, and we had hoped that this onus would be reversed. "Although not a win for the National Post on the facts of the case, this decision is the strongest statement yet by our courts as to the basis on which the law protects journalists' confidential sources," said Phil Tunley, lawyer and member of CJFE's board. "It establishes the analytical balance that must now be applied by all our courts in any legal proceedings to set that protection aside." "It is unfortunate that a journalist who has been scrupulously careful in his dealings with a confidential source is now being put in the position of having to break his promise or face legal consequences," said Arnold Amber, President of CJFE. "But in the big picture, this has to be seen as a significant step forward for journalists in Canada." The Supreme Court decision was 8-1 with the dissenting decision from Madam Justice Rosalie Abella who declared "The harm caused by the disclosure of the identity of the confidential source in this case is far weightier on the scales than any benefit to the investigation of the crime."

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