Intellectual freedom in Canada: Go to jail to protect your sources? Maybe you will have to.

Journalists have no constitutional right to protect confidential sources at all costs, the Supreme Court of Canada ruled last Friday.

The court ruled 8-1 against the National Post and reporter Andrew McIntosh who sought to quash a search warrant issued in the Shawinigate affair almost a decade ago.

The news is not all bad. Here’s Canadian Journalists for Free Expression on the case:

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."

However, the Canadian Association of Journalists is profoundly disappointed:

The Supreme Court ruled this morning that former National Post reporter Andrew McIntosh must give police documents leaked to him while he was investigating the Shawinigate affair. RCMP intend to conduct forensic tests on the documents and the envelope they came in to determine who McIntosh's source is and whether the source leaked forged documents intended to discredit former Prime Minister Jean Chretien.

"This is a significant blow to every journalist's ability to protect whistleblowers who come forward with information that's in the public interest," said CAJ President Mary Agnes Welch. "We fear this will have a profound chilling effect."

The CAJ was part of a coalition of media organizations including the Canadian Newspaper Association, Canadian Journalists for Free Expression, Ad IDEM/Canadian Media Lawyers Association and many others that had intervenor status in the case.

One benefit is clarification of what the Supreme Court thinks the law should say. A great difficulty in Canada and a number of other countries has been lack of clarity. Every judge her own Solomon is not the solution either. One problem for media is that, like serious Christians and Jews, they are a minority, and often one that is disliked, so even if this ruling silences whistle-blowers, no outrage will follow. Too many people will just decide to keep their mouths shut about whatever happened.

A number of media weighed in, of course: CBC News, CTV News, Kirk Makin of The Globe and Mail, Shannon Kari of the National Post (also timeline of the Shawinigate affair), Canadian Press,
Tonda MacCharles of the Toronto Star, Janice Tibbetts of the CanWest News Service

Thanks to Franklin Carter at the Book and Periodical Council's Freedom of Expression Committee.

For more intellectual freedom in Canada news, jump to Intellectual freedom in Canada: Everybody saw Mohammed, it seems