Law Times

PAGE 4 NEWS may 17, 2010 • Law Times Media lawyers see silver lining in Post ruling BY TIM NAUMETZ For Law Times OTTAWA — Lawyers who ar- gued for media interveners in a Supreme Court of Canada case that put the public interest in solving a crime over the pos- sible protection of a journalist's source are taking an optimistic view of the ruling. Th ey say the decision, while compelling former National Post reporter Andrew McIn- tosh to provide police with an allegedly forged document concerning a controversial fed- eral bank loan involving former prime minister Jean Chrétien, emphasized the crucial role of confi dential sources in profes- sional journalism and the need for courts to protect them. "I actually regard it as a very positive decision," Peter Jacobs- en, counsel for CTVglobemedia Inc. in its intervention backing the Post, tells Law Times. "Th e court recognized for the fi rst time in a considered way the concept of there being a journalist-source privilege and put, I think, pretty good protections around that." Daniel Henry, in-house counsel for the CBC, also took the outlook that the glass was half-full or better, despite the negative reaction the decision sparked in some circles. For one thing, aside from sev- eral comments shoring up the crucial role confi dential sources play in independent reporting of government or corporate mal- feasance, the judgment centred on an alleged forgery, presented to McIntosh in a brown-paper envelope, as opposed to a direct order that the reporter had to provide the identity of the source who gave him the document. "I think that the court, in carving out this area and saying the document has to be handed over, has clearly said that this is a rare circumstance and they have indicated that the protec- tion of a confi dential source is important to be weighed, not only in the circumstance of a search warrant but in the con- text of testimonial compulsion," the decision, written by Justice Ian Binnie, opted to establish rules for journalistic source pro- tection on a case-by-case basis using the early 20th century U.S. Wigmore criteria rather than invoking freedom of the press and expression under s. 2(b) of the Charter of Rights and Freedoms. "Th e court's conclusion that Justice Ian Binnie Henry tells Law Times. "When a reporter is subpoe- naed to talk about their sources, what the court has done is put considerable fl esh on the argu- ment that confi dential sources are important and require pro- tection," he adds. Th e lawyer who argued an intervention on behalf of the Canadian Civil Liberties Associ- ation, however, is disappointed National Post did not engage s. 2(b) of the Charter is disap- pointing," Jamie Cameron, the Osgoode Hall law profes- sor acting for the CCLA, said in an e-mail. "Th e court's dis- cussion of news gathering and the role of confi dential sources may strengthen the case for the privilege in any balancing of in- terests but it otherwise does not change the law." Th e ruling rejected the news- paper's appeal of an Ontario Court of Appeal ruling that re- versed a judge's decision to quash a search warrant and assistance order that would have required McIntosh and the Post to produce the document, a bank record allegedly showing that a Quebec hotel owner, who received a fed- eral loan after Chrétien pressed a government development bank to advance it, owed the former prime minister $23,040. "Th e public interest in free- dom of expression is of im- mense importance but it is not absolute and in circumstances such as the present it must be balanced against other impor- tant public interests, including the investigation and suppres- sion of crime," Binnie wrote. He rejected arguments from McIntosh and the Post that the reporter's source might be re- vealed if police were allowed to dust the document for fi nger- prints and try to apply DNA testing to identify the perpetra- tor of the alleged forgery. "In terms of the Charter, the ap- pellants go too far in claiming a broad immunity from produc- tion of physical evidence," said Binnie. "A claim that secret sources may be disclosed is not a complete answer to a criminal investigation. I conclude that the warrant in question does not infringe the appellants' s. 2(b) freedom of expression." Among other things, though, Binnie cited the famous release of the Pentagon Papers on the Vietnam War in 1971 as he made the point that freedom of expression can outweigh legal off ences. Th ough government employee Daniel Ellsberg was later indicted for leaking the documents to Th e New York Times, the U.S. Supreme Court rejected then-president Richard Nixon's attempts to obtain an injunction prohibiting publica- tion of the information, which revealed secret U.S. carpet bombing of Cambodia and the fact that four successive presi- dents had misled the American public about the war. "Th e Pentagon Papers case originated in circumstances amounting to an off ence, yet few would now argue that the pub- lication of the true facts in that situation was not in the greater public interest," wrote Binnie. In her dissent, Justice Rosalie Abella noted the federal bank claiming the forgery about the debt to Chrétien had problems with its own records. Th e origi- nal supplier's list the federal bank gave to a Mountie inves- tigating the alleged forgery was missing the page where, alpha- betically, the money owed to Chrétien would have appeared. Th e bank obtained a new list from the inn, which didn't It's much easier to keep up when you have Criminal Spectrum as your research tool. With leading authored works such as McWilliams, Ewaschuk and Martin's as well as decisions from renowned law reports like Canadian Criminal Cases, Criminal Spectrum gives you the case law and analysis you can't find elsewhere. Find select decisions denoted by a diamond image, chosen by experts to help narrow your research. The functionality is practical and easy to use. Don't be left behind. For more information, visit canadalawbook.ca Criminal Spectrum_Police man (LT 1-2x4).indd 1 www.lawtimesnews.com 5/12/10 8:57:31 AM show the debt but had diff er- ent dates and entries than the fi rst list. "Th is is really huge," Jacobs- en says of the attention Binnie's decision paid to the need to protect journalistic sources and the need "to provide solid pro- tection against the compelled disclosure of secret sources in appropriate situations." "Th is is really huge because you can spend an awful lot of time trying to convince a judge of those things," he says. "Now we don't have to." LT

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